From: Subject: washingtonpost.com: A Death Penalty Revisited Date: Fri, 30 Jan 2004 09:42:08 -0500 MIME-Version: 1.0 Content-Type: multipart/related; boundary="----=_NextPart_000_0009_01C3E715.54292D20"; type="multipart/alternative" X-MimeOLE: Produced By Microsoft MimeOLE V5.50.4927.1200 This is a multi-part message in MIME format. ------=_NextPart_000_0009_01C3E715.54292D20 Content-Type: image/gif Content-Transfer-Encoding: base64 Content-Location: file:///I:/USERS/Libjj/JJC/Death%20Penalty/Web%20and%20internet/Articles/wpostsimmons12704_files/uc.gif R0lGODlhAQABAIAAAAAAAAAAACwAAAAAAQABAAACAkQBADs= ------=_NextPart_000_0009_01C3E715.54292D20 Content-Type: multipart/alternative; boundary="----=_NextPart_001_000C_01C3E715.542AB3C0" ------=_NextPart_001_000C_01C3E715.542AB3C0 Content-Type: text/html; charset="Windows-1252" Content-Transfer-Encoding: quoted-printable Content-Location: file://I:\USERS\Libjj\JJC\Death%20Penalty\Web%20and%20internet\Articles\wpostsimmons12704.htm washingtonpost.com: A Death = Penalty Revisited washingtonpost.com=20

A Death Penalty Revisited
High = Court to=20 Review Sentence of Man Who Killed at 17=20

By Charles Lane
Washington Post Staff = Writer
Tuesday,=20 January 27, 2004; Page A02

The Supreme Court announced yesterday that it will decide whether to = abolish=20 the death penalty for juvenile offenders, raising the prospect of a = major change=20 in capital punishment law.

In a brief order, the court said it will hear Missouri's appeal of a = ruling=20 last year by that state's Supreme Court, which decided that executing = convicted=20 murderer Christopher Simmons would be "cruel and unusual punishment" = because=20 Simmons was younger than 18 at the time of his crime. Oral arguments are = to take=20 place in the fall, with a decision by July 2005.

The U.S. Supreme Court last ruled on the death penalty for juvenile = offenders=20 in 1988 and 1989. In a pair of close votes, it stopped capital = punishment for=20 killers younger than 16 but permitted it for those 16 or 17. The = Missouri court=20 ruled 4 to 3 that a "national consensus" against the practice has since=20 emerged.

The Missouri court said it was following not the Supreme Court's 1989 = ruling=20 but the line of constitutional reasoning laid out in 2002 when the = Supreme Court=20 banned the execution of mentally retarded offenders.

In that case, the justices ruled 6 to 3 that the cumulative effect of = new=20 state laws against executing mentally retarded offenders, which the = court had=20 upheld in 1989, confirmed that Americans now regarded it as "cruel and = unusual,"=20 and as such a violation of the Constitution. The Missouri court said the = same=20 can now be said of the death penalty for offenders younger than 18, = which is=20 rarely imposed even where it is permitted.

Opponents of the death penalty say their case was bolstered by a = Virginia=20 jury's recent refusal to recommend death for convicted Washington area = sniper=20 Lee Boyd Malvo, who was 17 when he killed FBI employee Linda = Franklin.

An unusual aspect of the case announced yesterday, Roper v. = Simmons,=20 No. 03-633, is that most of the current justices have already expressed = strong=20 views on the issue: The four most liberal members have declared that the = death=20 penalty for juvenile offenders is unconstitutional, and three of the = most=20 conservative members have said it is not.

Thus the outcome is likely to hinge on the vote of Justice Sandra Day = O'Connor, who has hedged.

In three cases since 2002, the court's four opponents of the death = penalty=20 for juveniles could not muster a fifth vote to stop the executions of=20 petitioners who presented the court with many of the same arguments = accepted by=20 the Missouri Supreme Court in this case.

Each of those cases presented procedural issues that could justify = avoiding a=20 ruling on the merits. But in Roper, the Missouri court nearly = forced the=20 justices to tackle the issue by explicitly interpreting a Supreme Court = decision=20 in a way the justices themselves had not done.

The basic argument against the death penalty for murderers younger = than 18 is=20 that they, like the moderately mentally retarded, may be held = accountable for=20 their actions -- but lack the emotional and intellectual maturity to = qualify for=20 a penalty society reserves for its most blameworthy wrongdoers.

Recent science showing that brain development is still in flux during = the=20 teenage years buttresses this moral claim, opponents say.

But supporters of state laws permitting capital punishment for = juvenile=20 offenders say that any particular defendant's culpability is a matter = for juries=20 to decide case by case.

Many teenagers are capable of acting with cold malice, they note; = Simmons=20 bound and gagged Shirley Crook and threw her, still alive, off a = railroad=20 trestle into a river. A dissenting judge on the Missouri court pointed = out that=20 Simmons told an accomplice they could get away with it because they were = juveniles.

Of the 38 states that have a death penalty, 16 do not permit the = execution of=20 juvenile offenders -- an increase of five states since 1989. Twelve = states have=20 no capital punishment at all, bringing the total number of states with = no death=20 penalty for juvenile offenders to 28. When the court abolished the death = penalty=20 for the mentally retarded, 30 states were in a comparable position.

There were 74 juvenile offenders on death row as of Oct. 16, 2003, = according=20 to the Death Penalty Information Center, which opposes capital = punishment.

Since the Supreme Court permitted the states to resume executions in = 1976, 22=20 of the 887 people executed have been juvenile offenders, all of them in = southern=20 or border states. Texas leads with 13 such executions, followed by = Virginia with=20 three and Oklahoma with two. There is no federal or U.S. military death = penalty=20 for juveniles.

Though the number of juvenile offenders sentenced to death is = relatively=20 small -- 1 percent of all death sentences imposed in 2003 -- the = symbolic=20 importance of the issue is great. Death penalty opponents have mounted a = major=20 campaign around it, hoping to leverage their victory in the mental = retardation=20 case into another ban on a category of executions.

The opponents enjoy clear support from the court's liberal wing.

In October 2002, Justice John Paul Stevens published a dissenting = opinion=20 that declared the execution of juvenile killers "shameful" and = "inconsistent=20 with evolving standards of decency in a civilized society."

He was joined by Justices David H. Souter, Ruth Bader Ginsburg and = Stephen G.=20 Breyer.

In 1989, by contrast, when the court voted 5 to 4 to permit the = execution of=20 16- and 17- year-old offenders, Justice Antonin Scalia specifically = rejected the=20 kind of evidence of decreasing public support for executing juvenile = offenders=20 that death penalty opponents offer today, noting that since "a far = smaller=20 percentage of capital crimes are committed by persons under 18 than over = 18, the=20 discrepancy in treatment is much less than it might seem."

He was joined in that opinion by Chief Justice William H. Rehnquist = and=20 Justice Anthony M. Kennedy. Justice Clarence Thomas was not on the court = at the=20 time, but as a justice he has generally opposed overturning state death = penalty=20 laws.

But O'Connor, while voting with the majority in 1989, left the door = open to a=20 different result later.

In a separate concurring opinion, she said there was not enough = evidence of a=20 "general legislative rejection" of executing 16- and 17-year-olds, but = conceded=20 that "the day may come" when there is.

Kennedy's vote, too, may be in play. Though he voted as a first-year = justice=20 with Scalia and Rehnquist in the 1989 case, he joined O'Connor and the = liberals=20 in the ban on executing the mentally retarded in 2002.

=A9 2004 The Washington Post Company

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