U.S. SUPREME COURT: Are we civilized?

St. Louis Post-Dispatch

October 14, 2004

Editorial

The U.S. Supreme Court may be on the verge of joining the rest of the civilized world in banning the execution of juveniles.

Justice Sandra Day O’Connor made just one remark during Wednesday’s hour-long argument over whether to execute Christopher Simmons, who was 17 when he murdered Shirley Crook of Fenton, Mo. Justice O’Connor said there was “about the same consensus” against the juvenile death penalty today as there had been against executing mentally retarded murderers when the court outlawed those executions in 2002.

That comment could be especially significant. Justice O’Connor is the crucial 5th vote for ending the execution of 16- and 17-year-old murderers. And the key legal question is whether a consensus has emerged that juvenile executions are “cruel and unusual” punishment in violation of the Eighth Amendment.

In 1993, Simmons and a 15-year-old accomplice broke into Ms. Crook’s home, bound her with duct tape and threw her in the Meramec River, where she drowned. Simmons, who now is 28, was sentenced to death.

Last year, the Missouri Supreme Court took the unusual step of getting out ahead of the U.S. Supreme Court, ruling 4-3 that a consensus had emerged against executing 16- and 17-year-old murderers similar to the consensus against executing the mentally retarded. 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. The Missouri Supreme Court also noted that only 3 states have executed a juvenile in the past decade, making such executions truly unusual.

Missouri Attorney General Jay Nixon appealed the court’s decision, arguing that legislatures, not courts, should decide whether juveniles can be executed.

A key question at Wednesday’s argument was whether the court should consider world opinion and practice. According to Amnesty International, since 1990 only China, the Congo, Iran, Nigeria, Pakistan, Saudi Arabia, Yemen and the United States have executed children and adolescents - not exactly the kind of company we want to keep.

When Missouri State Solicitor James Layton said Wednesday that only the “mores of American society” mattered, Justice Ruth Bader Ginsburg pointed out that Thomas Jefferson had referred in the Declaration of Independence to a “decent respect to the opinions of mankind.” Conservative Justice Antonin Scalia shot back, “What did John Adams think of the French?”

In some ways, this is the legal parallel of the political argument playing out in the presidential campaign about how much the United States should heed world opinion. The answer is the same in both spheres: We should consider world opinion, but not allow it to dictate the result. In the case of juvenile executions, world opinion and American opinion are moving in the same direction. It is safe to say that there is an evolving consensus throughout the civilized world to end juvenile executions.

Scientific research also shows that juveniles’ brains are less developed in areas that mediate impulse control and decision-making. Weighing public opinion and scientific evidence together tips the scales toward mercy. It is time for the law to follow and to spare the lives of 72 juveniles now on death rows across the United States.