There was no consensus yesterday among U.S. Supreme Court justices on the death penalty for juveniles, says the New York Times. Two years after ruling 6 to 3 that the execution of mentally retarded offenders is unconstitutional, the court appeared deeply divided over whether similar reasoning meant that the death penalty for acts committed while a juvenile should be seen as “cruel and unusual punishment” in violation of the Eighth Amendment. The Missouri Supreme Court reached that conclusion by a 4-to-3 decision last year freeing Christopher Simmons from death row for a murder he committed in 1993 when he was 17.
Seth Waxman, representing Simmons, argued that not only the increasing rarity of juvenile executions (only three states have done so in 10 years) but also new medical and psychological understanding of teenage immaturity validated the step the Missouri court took last year. Justice Antonin Scalia said, “If all this is so clear, why can’t the legislature take it into account? All you have to do is bring these facts to the attention of the legislature.” Four justices – John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer – have made clear their desire to invalidate the juvenile death penalty. Chief Justice William Rehnquist and Justices Scalia and Clarence Thomas are likely to uphold it. The focus was on Justices Anthony Kennedy and Sandra Day O’Connor; both rejected the challenge to juvenile executions in 1989 and at least one must repudiate that precedent if Simmons is to prevail. Kennedy expressed concern yesterday that drawing the line at 18 might induce teenage gangs to designate 16- or 17-year-old members as “hit men.”