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
Malvo was four months shy of his 18th birthday at the time of the
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-
"[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. …