Taking Juveniles off Death Row: This Year the Supreme Court Will Hear Arguments over Whether the Juvenile Death Penalty Is Unconstitutional. If It Decides So, the Court Will Be on the Cutting Edge of Death-Penalty Reform

By Abramsky, Sasha | The American Prospect, July 2004 | Go to article overview

Taking Juveniles off Death Row: This Year the Supreme Court Will Hear Arguments over Whether the Juvenile Death Penalty Is Unconstitutional. If It Decides So, the Court Will Be on the Cutting Edge of Death-Penalty Reform


Abramsky, Sasha, The American Prospect


DESPITE A JUDICIARY INCREASINGLY DOMINATED BY CONSERVATIVE APPOINTEES, the federal courts have shown a heartening willingness to rein in the death penalty. In recent years, they have limited who is eligible and have placed other restrictions on states' arbitrary conduct. Two years ago, the U.S. Supreme Court, by a vote of 6 to 3, halted the practice of executing mentally retarded prisoners, declaring it unconstitutional in Atkins v. Virginia.

Later this year, the Court will hear arguments in Roper v. Simmons, a watershed case involving Christopher Simmons, a young man who had lived on Missouri's death row for close to a decade after being convicted of a particularly gruesome murder committed when he was 17 years old. But in 2003, the Missouri Supreme Court ruled that the juvenile death penalty violated the Eighth Amendment's prohibition on cruel and unusual punishment, and, when the state appealed, the U.S. Supreme Court agreed to take the case. Since then, juvenile executions across the country have been put on hold.

Most experts believe it will be impossible for the Court to avoid a decision barring the execution of juveniles when the justices make their ruling public sometime in 2005. "All the measures are exceeded," says Adam Ortiz, who works on the issue for the American Bar Association. Ortiz is referring to the fact that the same "measures" the Court cited in barring execution of the mentally retarded--an inability to fully interpret events and a lack of complete moral culpability, for example--hold true for juveniles in light of the new scientific understanding of the adolescent brain.

Together, these developments represent the biggest shift away from capital punishment since the practice was briefly abolished in this country between 1972 and 1976. "This is the cutting edge of the death-penalty-reform movement," says Richard Dieter, executive director of the Washington-based Death Penalty Information Center

It is also a remarkable turnaround from the prevailing view on the Supreme Court in the late 1980s. In two seminal cases--Thompson v. Oklahoma (1988) and Stanford v. Kentucky (1989)--the justices upheld the juvenile death penalty but left open the door to re-examine it if community norms, or "standards of decency," changed in the years to come.

Since then, the standards of decency have indeed changed. A moral consensus is emerging that holds out room for the eventual rehabilitation of teenage criminals, even those convicted of particularly brutal murders, or at the very least one that judges the actions of immature teenagers by a slightly different moral calculator than that used for mature adults; that recognizes new scientific evidence on how the adolescent brain functions; and that seeks to understand, if not excuse, why some adolescents are prone to acts of extreme violence. Perhaps in no other area of the criminal-justice system has there been such a dramatic shift of moral sensibilities in so short a time frame. Importantly, this view is also informed by a troubling body of evidence--gathered by experts like Ohio Northern University law professor Victor Streib--indicating that far from being blind, justice is capricious: Most teenagers sent to death row are poor, black, and likely to have been convicted of killing whites.

BECAUSE OF THE ABOVE FACTORS, AMERICANS INCREASingly favor prison terms, including life without parole, over death for juveniles convicted of capital murder. Last year, only two people in the United States were sent to death row for crimes committed when they were minors, down from seven in 2000. Though the number of Americans executed for crimes committed when they were minors has always been tiny compared to the number of adults executed, the punishment finally "seems to be out of style and it seems to be disappearing," says Streib. "It's like an endangered species."

Today, 20 states permit the execution of someone convicted of a crime committed when he or she was younger than 18. …

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Taking Juveniles off Death Row: This Year the Supreme Court Will Hear Arguments over Whether the Juvenile Death Penalty Is Unconstitutional. If It Decides So, the Court Will Be on the Cutting Edge of Death-Penalty Reform
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