Date registered: Aug 2002
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Court to consider juvenile death penalty
WASHINGTON - A divided Supreme Court on Wednesday weighed whether to ban the death penalty for juveniles who kill, one of the highest-profile questions confronting the justices as they continue re-examining who is subject to capital punishment.
Two years ago, the court abolished the death penalty for the mentally retarded by a 6-3 vote and four of the nine justices went on record as saying the court also should end the execution of offenders under age 18. But it was unclear Wednesday if they could gain a decisive fifth vote at arguments in the case of a Missouri man sentenced to die for robbing and killing a woman when he was 17.
Justice Anthony Kennedy, a potential swing vote, said the United States is one of only a handful of countries to allows juvenile executions, but he also raised the possibility of violent gangs recruiting 16- and 17-year-old as hit men if the teenagers are shielded from the death penalty.
"If we rule against you, the deterrent remains," Kennedy told a lawyer representing the Missouri inmate, Christopher Simmons.
Kennedy and Justice Sandra Day O'Connor are expected to cast the deciding votes in the closely watched case. The two moderate justices both joined the court's liberal wing in the court's 2002 decision that executing the mentally retarded violates Eighth Amendment protections against "cruel and unusual punishment."
O'Connor said little Wednesday, asking a single question about the number of states that permit death sentences for teens. One test before the court is whether public sentiment surrounding capital punishment has shifted since the Supreme Court, ruling in a Kentucky case in 1989, allowed states to execute killers who were 16 or older when they committed their crimes.
Washington lawyer Seth P. Waxman, who served as U.S. solicitor general during the Clinton administration, represented Simmons on Wednesday. Waxman said an evolving consensus against the juvenile death penalty and new research on brain development should persuade the court to abolish the practice.
But James R. Layton, Missouri's state solicitor, countered that juries and state legislatures should decide whether juveniles who kill are sentenced to death. He pointed to a Virginia jury's decision to spare convicted sniper Lee Boyd Malvo a death sentence for carrying out the deadly Washington-area attacks when he was 17, with jurors citing Malvo's age and the influence of an older co-defendant.
"There are 17-year-olds who are equally culpable to those who are 18, 20, 25, or some other age," Layton said. He told the justices that they should not be swayed by the "marshaling of untested evidence" or international opinion, saying the decision "needs to be based on the mores of American society."
The United States is one of only seven of countries that have allowed executions of young offenders since 1990, and the other countries - including China, Iran and Pakistan - have virtually abandoned the practice to conform with international human rights treaties.
The Supreme Court had repeatedly refused to revisit the question of executing juveniles, but its hand was forced last year when the Missouri Supreme Court overturned the death sentence of Simmons, now 28. He was 17 in September 1993 when he broke into the home of Shirley Crook, robbed her, bound her and pushed her from a railroad bridge to her death.
Simmons confessed to the killing, which he planned with two teenage friends after assuring them that "their status as juveniles would allow them to get away with it," court records show.
Waxman argued Wednesday that new developments in brain research, and Simmons' own statements, show that adolescents do not fully grasp the possible ramifications of their actions.
"No mature adult would have thought 'I can get away with this,' " Waxman told the court.
Chief Justice William Rehnquist and Antonin Scalia appeared unswayed.
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