Washington Post

February 32004

Editorial

AT FIRST GLANCE, the Supreme Court’s deci­sion to recon­sid­er whether the juve­nile death penal­ty vio­lates the Constitution may seem to be good news for oppo­nents of cap­i­tal pun­ish­ment. In 1989 the high court, in the case of Stanford v. Kentucky, upheld the prac­tice of exe­cut­ing peo­ple for crimes they com­mit­ted when they were 16 or 17. Now the jus­tices want anoth­er look, just as they recent­ly took anoth­er look at — and banned — exe­cu­tion of the men­tal­ly retard­ed, which they had also upheld in 1989. Some state leg­is­la­tures have moved to out­law the juve­nile death penal­ty since the court last con­sid­ered the issue, arguably a sign of the same sort of con­sen­sus that led the jus­tices to declare killing of the retard­ed to be cru­el and unusu­al pun­ish­ment.” Perhaps, some hope, the court is poised to take the next step: a clear state­ment that killing peo­ple for crimes they com­mit­ted as juve­niles is also off-limits.

Unfortunately, this may not be the court’s inten­tion. The jus­tices have passed up the chance to con­sid­er the juve­nile death penal­ty in recent years, over the objec­tions of the four more lib­er­al mem­bers of the court, and there­by let juve­nile offend­ers go to their deaths. The court accept­ed the lat­est case only after the Missouri Supreme Court ruled that the Constitution for­bids the juve­nile death penal­ty, notwith­stand­ing the high court’s prece­dent. The U.S. Supreme Court, in oth­er words, may have agreed to hear the case not because jus­tices have changed their minds but to slap down a state court.

The Missouri court rea­soned that the Supreme Court itself con­sid­ers the Eighth Amendment’s pro­hi­bi­tion of cru­el and unusu­al pun­ish­ment not as a sim­ple ban on par­tic­u­lar­ly vile puni­tive prac­tices but rather as a kind of slid­ing scale: Whatever soci­ety’s evolv­ing stan­dards of decen­cy” come to abhor, the Eighth Amendment for­bids. Times have changed since 1989, the state court rea­soned, so it was free to deter­mine that since Stanford, a nation­al con­sen­sus had devel­oped against the exe­cu­tion of juve­nile offend­ers.” Given that low­er courts are sup­posed to apply Supreme Court prece­dents faith­ful­ly, this approach is dif­fi­cult to defend. It would not be sur­pris­ing if the high court repu­di­at­ed the Missouri court’s action and, in so doing, reit­er­at­ed its own pri­or position.

But it would a great shame, because if the Missouri court mis­un­der­stands its oblig­a­tion to the fed­er­al Supreme Court, it is right on the mer­its of the mat­ter. Indeed, the juve­nile death penal­ty was cru­el and unusu­al pun­ish­ment in 1989, a bar­bar­ic mis­treat­ment of chil­dren, and it is still cru­el and unusu­al today. The court should not, in dis­ci­plin­ing a low­er court, com­pound its own pri­or error.

© 2004 The Washington Post Company

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