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From left, Elizabeth Scott, Rob Lee, Elizabeth Gladden, and Laurence Steinberg. Photo courtesy Dan Spurlock/Virginia Law Weekly.

Posted November 10, 2004
Supreme Court Likely to Ban Execution of Juveniles, Experts Predict

The Supreme Court is likely to ban the execution of criminals convicted of crimes committed when they were under the age of 18, according to a panel of experts who were on hand when the Court heard arguments in Roper v. Simmons Oct. 13, a case involving the execution of Christopher Simmons, who was 17 when he murdered Shirley Crook in Missouri.

Rob Lee, director of the Virginia Capital Representation Resource Center, Elizabeth Gladden, staff attorney with the American Bar Association’s Juvenile Justice Center, and Laurence Steinberg, a professor of developmental psychology at Temple University and the director of the John D. and Catherine T. MacArthur Foundation’s Research Network on Adolescent Development and Juvenile Justice spoke at the Law School Nov. 4, agreeing that the end of the juvenile death penalty is likely because evolving state standards have made it less acceptable.

The recent background traces to the Kentucky case of Kevin Stanford, who challenged his death row sentence in 1989. The Supreme Court then found there was no national consensus against executing juveniles, said Gladden. When Stanford appealed again in 2002, the Court refused to hear his case, but four justices announced their opinion that the juvenile death penalty was “a relic of the past,” signaling their willingness to end it and leaving anti-execution advocates looking for just one more vote. Thereafter, Kentucky’s governor commuted Stanford’s sentence to life without parole.

Since then there’s been a lot of state movement away from juvenile execution, Gladden said. In 1989, 25 of the 37 states that had the death penalty allowed it for juvenile cases too. Today, 38 states have capital punishment, but only 19 allow it for juveniles, with Virginia, Texas and Oklahoma as the most likely to employ it. For the past two years only two juries sentenced juveniles to death. “Internationally, we are the only country that condones executing juveniles. Iran executed a 16-year-old girl this year, but their parliament is ending it this week,” said Gladden. “There is a very strong consensus against juvenile execution internationally.”

In Roper v. Simmons, the issue is brought to a point. “In the way the case was written, they threw down the gauntlet to the Supreme Court,” she said. “The Missouri Supreme Court briefed the case and says the U.S. Supreme Court would find a consensus now.”

Missouri’s court reasoned “that if they follow Atkins [a decision forbidding execution of the mentally retarded], then the Eighth Amendment must prohibit the execution of juveniles,” explained Steinberg. “In the mental retardation cases the difficulty was in diagnosing mental retardation. But the Supreme Court was clear that these people as a class were not culpable. Now the difficulty is that age does not equate with maturity.”

The panelists interpreted the demeanor of two justices, Sandra Day O’Connor and Anthony Kennedy, as suggesting that they are the most likely to oppose the juvenile death penalty. O’Connor asked one question, looking to confirm that the number of jurisdictions that allowed execution of the mentally retarded was the same as the number allowing execution of juveniles. Kennedy wondered if the juvenile executions had any deterrent effect and if gangs might not begin using underage members as killers.

Steinberg said that idea supports the developmental argument against juvenile execution because it presumes the gullibility of 16- and 17-year-olds.

The larger issue involved is the legal definition of childhood, said Rob Lee. Developmental psychology says there is an age of maturity, but what age should the law say is fair, he asked. The law recognizes mitigating factors in decision-making such as lack of forethought about consequences, or an inability to control impulses or resist peer pressure. “Developmental psychology would say that 16- and 17-year-olds don’t do as well at those things,” Lee said. Recent neuroscience research shows that the brain is still developing at those ages, “especially the regions active in decision-making,” he said, cautioning that the data is just “suggestive” and that more research needs to be done. Brain maturation is gradual and cumulative, making it hard to draw a line between maturity and immaturity. “But I’m pretty sure it isn’t at 16 or 17,” said Lee.

“A reasonable person might ask why we can’t let juries evaluate cases and make decisions,” he said. “The counterargument is that we can’t be sure juries would evaluate the right factors.” They might mislead by considering race or the manliness of a voice, he suggested. In past cases the American Psychological Association has said research shows that 15- and 16-year-olds make medical decisions as well as adults do. But a “decision to abort a pregnancy is not like one made in the heat of the moment,” Lee said. “It’s rare that in the midst of a crime people stop to ask for advice.”

“I think this case will be determined on the basis of the emerging consensus argument, not the immaturity argument,” he said.

“I agree,” said Steinberg. “Teenagers are immature—well, duh.”

The drop in the annual rate of executions from 18 several years ago to two over the last few years is more convincing, said Gladden.

“I feel optimistic,” she said. “We only need one more vote.”

“I hear the arguments from [Justices] Scalia and Rehnquist as ‘out there,’ as having an element of desperation,” said Steinberg.

“I think there’s a better than 50-50 chance,” agreed Lee. “O’Connor’s comment hinted at where she was going. I think the chances are she will vote to abolish it.”
• Reported by M. Marshall

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