Executing Juveniles

St. Louis Post-Dispatch

January 28, 2004

Editorial

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.