U.S. SUPREME COURT Debate over juvenile executions centers on national consensus

The justices must evaluate whether there is a consensus against the practice.
CHICAGO TRIBUNE
WASHINGTON -- The Supreme Court struggled Wednesday with whether to stop states from executing juvenile killers, though a majority of the justices seemed to agree a consensus against the practice exists throughout this country and the world.
Squarely confronting the scope and purpose of the death penalty, the justices pressed lawyers on whether its use against juvenile killers amounts to cruel and unusual punishment in violation of the Constitution's Eighth Amendment.
A majority of the justices seemed disturbed by the practice. Several focused on arguments that the United States and Somalia are the only nations to permit the execution of juvenile killers. More than 100 other countries with the death penalty, including China, Mongolia and Saudi Arabia, do not execute people for crimes committed as juveniles.
"We've seen a very substantial demonstration that world opinion is against us," Justice Anthony Kennedy told a lawyer for the state of Missouri. "Does that have a bearing on what's 'unusual'?"
State's argument
James Layton, a lawyer for the state of Missouri, argued that world opinion is irrelevant and that legislatures should determine the appropriate age for executions. Juries, he said, then can factor in a defendant's age in deciding whether to recommend death.
"Decisions under the Eighth Amendment should not be based on what happens around the world," Layton said. "They should be based on mores of American society."
In deciding whether to prohibit the use of the death penalty against juvenile killers, the justices must evaluate whether the nation has reached a consensus that such executions violate standards of decency. The court ruled in 1988 the government could not execute people who murdered at 15 or younger. In 1989, however, it refused to block the death penalty for those who kill at 16 and 17.
But Seth Waxman, a lawyer for Missouri death row inmate Christopher Simmons, argued Wednesday that much has changed since then. A consensus has emerged in the states, he said, because 30 now prohibit it for those under 18. That is seven more than in 1989. In addition, new scientific evidence has emerged that shows adolescents are less mature and more prone to impulsive behavior than adults, he said.
"These developments change the constitutional calculus," Waxman said. "What's notable is how robust this consensus is. Eighteen is the bright-line between childhood and adulthood."
Case background
Simmons, now 28, was 17 when he and a friend broke into the home of a Missouri woman, bound her with duct tape and drove her to a railroad bridge. They threw her, alive and conscious, into the river, where she drowned. He was convicted and sentenced to death, but the Missouri Supreme Court reversed the sentence, holding that the execution of a juvenile violated the Eighth Amendment.
Waxman argued Wednesday that the national consensus against the practice was as solid as that against the execution of mentally retarded criminals. In 2002, the court blocked the execution of the mentally retarded, concluding the nation had reached a consensus that the practice was wrong. Thirty states had opposed executing the mentally retarded.
That decision was 6-3, with the court's two more moderate justices, Justices Kennedy and Sandra Day O'Connor, joining with its four more liberal ones.
Justices' leanings
Justices Kennedy and O'Connor are critical to the outcome of this case, as well. The four more liberal justices -- John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer -- already have said in a previous case they believe executing juvenile killers is unconstitutional.
Justice Kennedy appeared receptive to arguments that the United States stands alone in imposing the death penalty for juvenile killers, even though 110 countries permit capital punishment.
He seemed less persuaded, however, by arguments that new scientific evidence also is against the practice. A large number of medical associations signed onto friend-of-the-court briefs that detail new studies that show adolescents' brains are not as developed as those of adults. Juveniles are therefore less culpable for their crimes and should not be eligible for the death penalty, they argue.
But Justice Kennedy and Chief Justice William Rehnquist appeared suspicious of those studies. Both noted they had not been present during Simmons' trial, where the state would have had an opportunity to present its own evidence to counter them.