Sniper Case Revisits Juvenile Death Penalty ; the Trial of Lee Boyd Malvo Comes as Opponents of Capital Punishment for Teens Appear to Be Gaining Ground

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Proponents of the juvenile death penalty have a new three-word pitch for why capital punishment should not be abolished for 16- and 17-year-olds: "Lee Boyd Malvo."

If there ever was a crime that deserves punishment by death, capital punishment supporters say, it is the series of sniper attacks that held the nation's capital in a grip of terror in October last year.

Mr. Malvo has told police he was the triggerman in most, if not all, of the 13 random shootings that resulted in 10 deaths over a three-week period. "I intended to kill them all," he told police interrogators in a recorded statement played for jurors at his trial.

Malvo was four months shy of his 18th birthday at the time of the shootings.

From the perspective of those seeking abolition of the juvenile death penalty, the sniper case couldn't have come at a worse time. Only months earlier, the US Supreme Court had ruled that capital punishment for those who are mentally retarded violates the Eighth Amendment's prohibition on cruel and unusual punishment. Legal analysts saw in the 6-to-3 landmark ruling the potential for a similar decision banning the execution of juveniles. The idea was that if the mentally retarded were incapable of being held fully blameworthy for their crimes, juveniles were also less than fully blameworthy (compared with adults).

In addition, there was an emerging consensus among state lawmakers that the death penalty was inappropriate for mentally retarded criminals. And a similar consensus is emerging against sentencing juveniles to death, they say.

But the problem with this analysis is that only four Supreme Court justices have publicly announced their willingness to strike down the juvenile death penalty. The two swing votes in the 6-to-3 decision, Justices Sandra Day O'Connor and Anthony Kennedy, have so far balked at exerting their tie-breaking power to make it happen.

And now with the Malvo trial in full swing, it remains unclear how Justices O'Connor and Kennedy will view the juvenile death- penalty issue.

"[Malvo] is not exactly the best poster boy for this issue," says Laurence Steinberg, a Temple University psychologist and director of the MacArthur Foundation Research Network on Adolescent Development and Juvenile Justice in Philadelphia. "If you talk to people who are juvenile death-penalty abolitionists, they have said they felt the antijuvenile death-penalty movement was gaining a lot of momentum - until the sniper case."

Nonetheless, Mr. Steinberg and many other juvenile-justice experts say it is inevitable that the US Supreme Court will eventually strike down capital punishment for juveniles. The only question, they say, is when.

The justices will have an opportunity as early as this term to confront the issue, should they agree to hear a case being appealed from the Missouri Supreme Court. At issue is a 4-to-3 decision announced in August in which the majority declared the juvenile death penalty unconstitutional. …


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