St. Louis Post-Dispatch

January 28, 2004


Next fall, the U.S. Supreme Court will decide whether the United States will join the rest of the civilized world in banning the execution
of juveniles.

The court announced this week that it will review last summer’s Missouri Supreme Court ruling that the execution of 16- and 17-year old murderers conflicts with society’s evolving standard of decency. The state Supreme Court overturned the death sentence of Christopher Simmons, who was 17 in 1993 when he murdered Shirley Crook of Fenton. Simmons and a juvenile accomplice broke into Ms. Crook’s home, bound her with duct tape and threw her into the Meramec River, where she drowned. Simmons now faces life in prison.

The Supreme Court is closely divided on the issue. Four justices - John Paul Stevens, Stephen Breyer, Ruth Bader Ginsburg and David H. Souter - believe that juvenile executions violate the Eighth Amendment’s prohibition against “cruel and unusual” punishment. Three justices - Clarence Thomas, Antonin Scalia and Chief Justice William H. Rehnquist - believe the penalty is constitutional.

The deciding votes will be those of Justices Sandra Day O’Connor and Anthony M. Kennedy, who in 2002 joined Justices Stevens, Breyer, Ginsburg and Souter to strike down the death penalty for the mentally retarded; since then, however, Justices O’Connor and Kennedy have refused to extend that view to the execution of juveniles.

The Missouri Supreme Court’s 4-3 decision both reflects and reinforces an evolving consensus against executing juveniles, similar to the consensus barring execution of the mentally retarded. Just as the number of states prohibiting the execution of the mentally retarded had risen to 30 by the time of the 2002 Supreme Court decision, the number of states prohibiting the execution of 16- and 17-year-olds has risen to 28. Only three states have executed a juvenile in the past decade, making such executions truly unusual, the court said.

But there is another, less favorable way to look at the numbers. The consensus against executing mentally retarded murderers evolved far more rapidly than the one against juvenile executions. Between 1989 and 2002, 16 states decided to stop executing the mentally retarded, while five stopped executing juveniles.

The Missouri Supreme Court looked to a broader societal consensus. It noted that leading religious, legal, psychiatric and foreign political leaders oppose the execution of juveniles. In addition, the court correctly reasoned, juveniles are less accountable for their actions than adults.

Missouri Attorney General Jay Nixon, who appealed to the U.S. Supreme Court, says the state Supreme Court should have been bound by the 1989 U.S. Supreme Court precedent upholding the juvenile death penalty. But the Eighth Amendment is different from other parts of the Constitution; its meaning evolves with society’s view of decency. Viewed from that perspective, it was appropriate for the state court to base its decision on society’s current standard of decency.

Justices Kennedy and O’Connor have been willing to consider the views of other nations; elsewhere in the world, the verdict is overwhelmingly against executing juveniles. The United Nations Convention on the Rights of the Child also condemns juvenile executions as inhumane. Surely, it’s time for the United States to catch up with the rest of the world.


St. Louis Post-Dispatch