[Deathpenalty]death penalty news----USA
rhalperi at mail.smu.edu
Wed Mar 2 00:41:16 CST 2005
States reconsider death penalty laws
8 months after New York's highest court struck down the death penalty, the
battle over whether to reinstate the law continues with no clear end in
sight. And the state is not alone.
A moratorium on capital punishment in Illinois ordered by its former
governor remains in place under a new administration. In Kansas, death
penalty proponents are hoping the U.S. Supreme Court will overturn a state
court's ruling that invalidated the death penalty statute there. And last
year, a New Jersey appellate court imposed a moratorium on executions
until the Department of Corrections addressed the issues of having a
medical team on standby should a stay be granted after a lethal injection
Meanwhile, activists are watching the state of New Mexico, where the House
voted Monday to abolish the death penalty. The bill is now before the
state Senate, where a close vote is expected. New Mexico Gov. Bill
Richardson is a death penalty supporter.
And in Washington Tuesday, the U.S. Supreme Court ruled the Constitution
forbids the execution of persons under age 18 when they committed their
crimes, ending the practice used in 19 states.
David Kaczynski, executive director of New Yorkers Against the Death
Penalty, said over the past decade, the debate surrounding capital
punishment has moved from the philosophical to concern over the "delivery
system" of the punishment itself.
"I think even 10 years ago, the focus was sort of on this moral question
of do we execute the people who committed the worst crimes, or should the
government not be in the business of executing anybody?" said Kaczynski,
who was drawn into the national spotlight after leading authorities to his
brother, Unabomber Ted Kaczynski.
"When you're talking about life and death, in a sense, you are trying to
create a government program that you hope will work flawlessly," he said.
In New York, the Republican-controlled state Senate on Tuesday said it
would pass legislation next week to reinstate the law. But the Democratic
leader of the Assembly, which held a statewide series of public hearings
on the issue, refused to say whether the body would vote on the bill this
"It's very puzzling," Senate Majority Leader Joseph Bruno said. "I'm not
sure what they're having the hearings on. This is an issue that has been
before the Legislature for decades."
Bruno said the Senate bill will address concerns of the state Court of
Appeals, which in June invalidated the death penalty law after determining
jury-instruction provisions could cause some jurors to vote for death when
they really didn't want to.
Like Kaczynski, Silver said he believes the public and some lawmakers in
New York are looking at the issue of capital punishment differently than a
decade ago, something which he said is "healthy." Perhaps most notable
among those taking a second look at the law is Assembly Judiciary
Committee Chairwoman Helene Weinstein, a death penalty supporter who
recently said she no longer believes that capital punishment serves as a
"New York's inaction speaks volumes" about the changing mood toward the
death penalty since the advent of DNA evidence that led to the exoneration
of some individuals on death row, said Richard Dieter of the Death Penalty
He said while states aren't moving en masse to repeal their capital
punishment laws, there has been a willingness to consider reforms. Of the
38 states that allow capital punishment, 14 are studying their statutes
for possible changes, said Dieter, whose organization does not take a
position on the death penalty.
The death penalty was brought back to New York in 1995, shortly after
Republican Gov. George Pataki took office. Between that year and 2003, the
number of murders in the state dropped from 1,551 to 922. Senate leaders
maintain the decline is due in part to having the death penalty on the
books, despite the fact that no one was ever executed.
Pataki, who during his successful 1994 campaign against former Gov. Mario
Cuomo promised to reinstate capital punishment, said no matter whether the
death penalty bill will pass in the Assembly, Silver should allow a vote
to take place.
"Just put it out on the floor," the governor said. "Let the legislators
vote and be held accountable ... If there is not a vote, then obviously it
is not serving the public interest."
On the Net: Death Penalty Information Center:
(source: Associated Press)
For Adults Only: Executions of juvenile offenders had to end
By outlawing the execution of juvenile offenders yesterday, the Supreme
Court wisely accepted a view formed of common sense and supported by
science: Young people with undeveloped brains are not fully capable of
The American Medical Association has amassed conclusive scientific
evidence showing that impulse control, regulation of emotions, risk
assessment and moral reasoning are the last parts of the brain to reach
maturity. On some level, science aside, every parent already knew this.
And yet lawmakers have been inconsistent when it comes to dealing with
children. Laws say juveniles are too immature to buy beer and cigarettes,
to vote and to enlist in the armed forces. But, until yesterday, they
could have been deemed mature enough to face the ultimate punishment for
Of course, the 29 men on death row in Texas for crimes they committed as
juveniles should stay behind bars. They must be held responsible for their
crimes. But the highest form of punishment should be reserved for those
who have the highest level of brain development.
That's the thinking of the rest of the world. Since 1990, the Democratic
Republic of Congo, Iran, Nigeria, Pakistan, Saudi Arabia and Yemen are the
only other nations to have executed juvenile offenders. The United States
stands alone - even among these peers - as the only nation refusing to
sign international treaties that would forbid the practice.
Justice Sandra Day O'Connor was one of the four dissenting votes. She said
she wants more evidence that society "truly has set its face against this
practice." As tempting as it may be to answer her challenge with public
opinion polls showing support for the death penalty in the 70 percent
range and support for executing young offenders well below a majority,
public opinion is not the most compelling reason to end this practice.
Neither is the appearance of hypocrisy on the international human rights
The bottom line is that scientists have learned more about when young
people are capable of adult reasoning, and that science must be our guide.
(source: Editorial, Dallas Morning News)
US becomes last country to end death penalty for under-18s
The US bowed to international and domestic pressure yesterday, becoming
the last country in the world officially to abolish the death penalty for
offenders who were under 18 when they committed murder.
The supreme court ruling will spare up to 70 inmates who are on death row
for committing murders while aged 16 or 17, and it removes a frequent
source of friction between the US and Europe.
The EU was quick to welcome the decision, but said it "opposes capital
punishment under all circumstances".
The former American president Jimmy Carter said that with the ruling the
US had joined "the community of nations".
"The supreme court decision confirms recent, compelling scientific
research findings, that the capacity for curbing impulsiveness, using
sound judgment, and exercising self-control is much less developed in
adolescents than in adults," Mr Carter said in a statement.
The ruling, passed by a 5-4 majority, was made in the case of Christopher
Simmons, who was 17 in 1993 when a woman died after he tied her up and
threw her off a bridge in Missouri.
The swing vote came from Justice Anthony Kennedy, who normally sides with
the conservatives on the bench.
In giving his reasons, he explicitly cited the role of world opinion. "It
is proper that we acknowledge the overwhelming weight of international
opinion against the juvenile death penalty, resting in large part on the
understanding that the instability and emotional imbalance of young people
may often be a factor in the crime," he wrote, adding that there was an
emerging national consensus against juvenile execution.
"Neither retribution not deterrence provides adequate justification for
imposing the death penalty on juvenile offenders," he said.
The judges ruled that juvenile execution conflicted with the 8th amendment
of the constitution which outlaws "cruel and unusual punishment".
"To decide what is cruel and unusual you don't look at what was happening
200 years ago. You look at evolving standards of decency. In that specific
area, what is going on in the rest of the world is relevant," said Stephen
Harper, an expert on juvenile law at the University of Miami. "Clearly,
international opinion had some effect on the court."
Capital punishment is unlikely to be outlawed altogether in the near
future in the US, where it still has majority support. However, this is
the second significant judicial limit imposed in recent years. In 2002,
the execution of convicts with learning difficulties was abolished.
The decision brings the US into line with the rest of the world. The
execution of juveniles is explicitly banned in the UN convention on the
rights of the child, which has been ratified by every country except the
US and Somalia, which has no recognised government.
Of the 39 executions of child offenders recorded by Amnesty International
since 1990, 19 took place in the US. The other countries include Iran,
China, Congo, Saudi Arabia, Pakistan and Yemen, but the US was the last
government to condone and defend the practice officially. Iran has
formulated a law banning such executions, but it has not yet been put into
"Until today the US was the only country that officially executed child
offenders; today's ruling finally brings the US out from the cold on this
issue," Kate Allen, Amnesty International's UK director, said in a
statement. "The death penalty does nothing to deter crime and is a human
rights violation that brings shame on those countries that use it. In
addition, innocent people are always at risk of execution."
In 1988 the supreme court outlawed the execution of anyone 15 or under. At
the time of yesterday's ruling, 15 states had death penalties for
offenders as young as 16 while four had a minimum age of 17.
(source: The (UK) Guardian)
Death penalty rejection: A blow for decency or leniency?
The Supreme Court, citing "evolving standards of decency that mark the
progress of a maturing society," ruled 5-4 Tuesday that executions of
those who killed before they were 18 is unconstitutional.
Moderate Justice Anthony Kennedy led the court's 4 liberals in the
Before the ruling the United States was the only country in the world that
still officially executed those who committed their crimes before age 18,
though others are believed to do so unofficially.
Until now the issue of such executions was the subject of robust debate in
the United States, where juvenile murderers were sometimes sentenced to
death because of the particular heinousness of their crimes.
Other countries that have executed such criminals since 1990 include the
Democratic Republic of Congo, Iran, Nigeria, Pakistan, Saudi Arabia, China
and Yemen, according to Amnesty International. China has since abolished
such death penalties, but Amnesty International said such executions still
occur in the countryside.
Iran also is considering legislation to ban the juvenile death penalty.
38 people have been executed worldwide since 1990 for crimes committed
before they were 18. Of those, 19 were executed in the United States.
In Tuesday's majority opinion Kennedy said the execution of someone who
committed murder before age 18 violated the Eighth Amendment's ban on
cruel and unusual punishments. The Eighth Amendment's ban is applicable to
the states through the 14th Amendment.
He added that a national consensus against the juvenile death penalty had
developed since a 1989 Supreme Court decision upholding the executions of
those 16 and 17. That evolving consensus was a guide to interpreting the
But he also cited international covenants and British law in his opinion,
adding, "It does not lessen our fidelity to the Constitution or our pride
in its origins to acknowledge that the express affirmation of certain
fundamental rights by other nations and peoples simply underscores the
centrality of those same rights within our heritage of freedom."
In dissent, Justice Sandra Day O'Connor said the majority had banned
executions for those who kill before age 18 "no matter how deliberate,
wanton or cruel the offense. Neither the objective evidence of
contemporary societal values," nor the high court's analysis on the
proportionality of punishment, "nor the two in tandem suffice to justify
Justice Antonin Scalia, joined by fellow conservatives Chief Justice
William Rehnquist and Justice Clarence Thomas, also dissented Tuesday, but
separately from O'Connor.
Scalia's language was blistering.
He noted that Alexander Hamilton had assured New York citizens in the
Federalist Papers that federal judges, appointed for life, would be "bound
down by strict rules and precedents."
"Bound down, indeed," Scalia said. "What a mockery today's opinion makes
of Hamilton's expectation, announcing the court's conclusion that the
meaning of our Constitution has changed over the past 15 years -- not,
mind you, that this court's decision 15 years ago (supporting such
executions) was wrong, but that the Constitution has changed. ...
"The court thus proclaims itself the sole arbiter of our nation's moral
standards -- and in the course of discharging that awesome responsibility
purports to take guidance from the views of foreign courts and
legislatures," Scalia added. "Because I do not believe that the meaning of
our Eighth Amendment, any more than the meaning of our Constitution,
should be determined by the subjective views of 5 members of this court
and like-minded foreigners, I dissent."
The landmark ruling affects those 19 states that previously reserved the
death penalty for adult and juvenile offenders: Alabama, Arizona,
Arkansas, Delaware, Florida, Georgia, Idaho, Kentucky, Louisiana,
Mississippi, Nevada, New Hampshire, North Carolina, Oklahoma,
Pennsylvania, South Carolina, Texas, Utah and Virginia.
Amnesty International said 12 states have death-row inmates who committed
their crimes before age 18: Texas, 29 inmates; Alabama, 14; Mississippi,
5; North Carolina, 4; Arizona, 4; Louisiana, 4; Florida, 3; South
Carolina, 3; Georgia, 2; Pennsylvania, 2; Virginia, 1; and Nevada, 1.
All are affected by Tuesday's decision.
In the case that brought Tuesday's ruling, Christopher Simmons was 17 and
a high school junior when he and a 15-year-old friend broke into the home
of Shirley Crook near Fenton, Mo.
Kennedy said Simmons earlier had bragged that he wanted to kill someone.
"In chilling, callous terms, he talked about his plan, discussing it for
the most part with two friends," ages 15 and 16, Kennedy said.
"Simmons proposed to commit burglary and murder by breaking and entering,
tying up a victim and throwing the victim off a bridge. Simmons assured
his friends they could 'get away with it' because they were minors."
One of the friends backed out of the plan and would later testify against
the others. Simmons and the other teenager broke into Crook's home. When
the victim recognized him, Kennedy said, it confirmed Simmons' plan to
The 2 teenagers bound Crook's hands and feet with electrical wire and
wrapped her whole face in duct tape. They then drove her in a van to a
railroad trestle spanning the Meramec River. They threw her, still very
much alive, into the river.
Her body was recovered the next day by fishermen.
Simmons drew attention to himself by bragging to friends that he had
killed a woman "because the bitch seen my face," Kennedy said.
He was later convicted of the murder and, since Missouri was one of the
states with a juvenile death penalty, was sentenced to death. However, his
execution eventually was blocked by the Missouri Supreme Court, which said
the process was unconstitutional.
The limits of the death penalty have been changing over the last 2
In 1989 the Supreme Court ruled 5-4 in Stanford vs. Kentucky that
executions of those who committed their crimes before age 16 was
unconstitutional. That left in place executions of those who committed
their murders at age 16 and 17.
But Kennedy said in Tuesday's majority opinion, citing a 1958 precedent,
"To implement this (constitutional) framework, we have established the
propriety and affirmed the necessity of referring to the 'evolving
standards of decency that mark the progress of a maturing society' to
determine which punishments are so disproportionate as to be cruel and
On the same day in 1989, Kennedy said, the Supreme Court ruled that the
execution of the mentally retarded was constitutional. However, in 2002 a
6-3 Supreme Court majority ruled in Atkins vs. Virginia that the state may
not execute the mentally retarded without violating the Eight Amendment's
Kennedy said the national consensus against the death penalty for
juveniles "is similar, and in some respects parallel, to the evidence
Atkins held sufficient to demonstrate a national consensus against the
death penalty for the mentally retarded."
The U.S. Supreme Court opinion affirms the decision of the Missouri
(No. 03-633, Superintendent. Roper vs. Simmons)
THE OVERVIEW -- Supreme Court, 5-4, Forbids Execution in Juvenile Crime
WASHINGTON, - Concluding that the United States and the world have turned
against the death penalty for youthful offenders, the Supreme Court ruled
on Tuesday that the Constitution categorically bars capital punishment for
crimes committed before the age of 18.
The 5-to-4 decision, which upheld a ruling by the Missouri Supreme Court,
will move 72 people off death row in 12 states. It represented an
about-face for a court that only 16 years ago rejected the argument that
the execution of those who kill at the age of 16 or 17 violated the Eighth
Amendment's prohibition against "cruel and unusual punishments."
Writing for the court on Tuesday, Justice Anthony M. Kennedy, who voted
with the majority 16 years ago, said the new decision was necessary to
keep pace with the "evolving standards of decency" that for the last 50
years have shaped the Supreme Court's view of what constitutes cruel and
Justice Kennedy said that not only did 30 states - five more than 16 years
ago - now reject the death penalty for juveniles, but that "it is fair to
say that the United States now stands alone in a world that has turned its
face against the juvenile death penalty."
Since 1990, he noted, only seven countries outside the United States have
executed people for crimes they committed as juveniles, and all 7 - Iran,
Pakistan, Saudi Arabia, Yemen, Nigeria, China and Congo - have disavowed
There have been 19 such executions in the United States since 1990, most
recently in 2003. Once the Supreme Court agreed in January of last year to
decide the issue, all executions that stood to be affected by the decision
were put on hold.
Justice Antonin Scalia, author of the court's last ruling on the subject,
Stanford v. Kentucky, filed a dissent on the new decision in Roper v.
Simmons, No. 03-633. Joined by Chief Justice William H. Rehnquist and
Justice Clarence Thomas, Justice Scalia disputed nearly all of the
majority's points, from how to count the various states to whether
reference to the views of foreign legal systems had relevance or
"I do not believe that the meaning of our Eighth Amendment, any more than
the meaning of other provisions of our Constitution, should be determined
by the subjective views of 5 members of this court and like-minded
foreigners," Justice Scalia said.
Justice Sandra Day O'Connor wrote a separate dissenting opinion that took
issue both with the majority's assessment of the existence of a national
consensus and with its view that the execution of juveniles was always
disproportionate to their moral culpability. She noted that while as a
legislator she would be "inclined to support" a minimum age of 18 for
capital punishment, she could not find a constitutional basis for doing so
as a judge.
Justice O'Connor pointedly disagreed, however, with her fellow dissenters'
opposition to taking into account foreign legal developments. "This
nation's evolving understanding of human dignity certainly is neither
wholly isolated from, nor inherently at odds with, the values prevailing
in other countries," she said.
Justice Kennedy's majority opinion was joined by Justices John Paul
Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer.
Justices Stevens and Ginsburg filed a concurring opinion to say that
"perhaps even more important than our specific holding today is our
reaffirmation of the basic principle that informs the court's
interpretation of the Eighth Amendment"; namely, that the amendment's
meaning was not frozen at the time of its adoption but has evolved.
That evolution has been on lively display in recent years with respect to
the death penalty. In 1988, in Thompson v. Oklahoma, the court barred the
execution of those under 16 at the time of the crime. Three years ago, in
Atkins v. Virginia, the court ruled that the Eighth Amendment
categorically barred the execution of the mentally retarded. The contrary
precedent that the Atkins decision overruled was handed down on the same
day in 1989 as the ruling that the court repudiated on Tuesday, permitting
the execution of those who killed at 16 or 17.
The court based the Atkins decision on its perception that a new consensus
had formed in the country to reject the execution of the retarded; 16
states that had permitted such executions in 1989 had rejected them by the
time the issue came back to the Supreme Court in 2000. After that
decision, the attention of opponents of the death penalty immediately
turned to the juvenile question, on which the development in the states
since 1989 had been slower, but steady and uniformly in the direction of
raising the age.
The defendant in the new case, Christopher Simmons, who was sentenced to
death for a murder he committed in 1993 at 17, went back to the Missouri
courts after the Atkins decision to argue that the reasoning of the
retardation case should be applied to juvenile offenders.
The Missouri Supreme Court agreed, noting that 5 states since 1989, by
legislation or judicial decision, had raised the age to 18. It ordered Mr.
Simmons re-sentenced to life in prison without parole.
In their dissenting opinions on Tuesday, both Justice O'Connor and Justice
Scalia were highly critical of the Missouri court, saying that it lacked
authority to depart, on its own, from the Supreme Court's binding
precedent. "Allowing lower courts to reinterpret the Eighth Amendment
whenever they decide enough time has passed for a new snapshot leaves this
court's decisions without any force," Justice Scalia said, adding, "The
result will be to crown arbitrariness with chaos."
The majority did not engage in this particular debate. Instead, Justice
Kennedy took the Missouri Supreme Court's opinion as a given and then
proceeded through his own analysis of the factual and legal landscape.
That analysis had three parts. First was an assessment of whether American
society had formed a consensus against juvenile executions. While the
change was "less dramatic" than the change on the retardation question,
Justice Kennedy said, it nonetheless provided the "objective indicia of
consensus" that the court found to be enough in the retardation case. He
noted that Congress had set a minimum age of 18 when it passed the Federal
Death Penalty Act in 1994. Counting the 12 states with no death penalty,
he said, a majority of the states have rejected capital punishment for
In his dissent, Justice Scalia said it made little sense to include the
non-death-penalty states in this calculation, calling the majority's
approach "rather like including old-order Amishmen in a
consumer-preference poll on the electric car." He continued: "Of course
they don't like it, but that sheds no light whatever on the point at
issue." Without counting the non-death-penalty states, he said, only 18
states had legislatively rejected the execution of 16- and 17-year-olds.
The second step in the majority's analysis was to move beyond counting by
states to decide, in Justice Kennedy's words, "in the exercise of our own
independent judgment, whether the death penalty is a disproportionate
punishment for juveniles."
He said that "3 general differences between juveniles under 18 and adults
demonstrate that juvenile offenders cannot with reliability be classified
among the worst offenders." The differences were: "a lack of maturity and
an underdeveloped sense of responsibility"; vulnerability to peer
pressure; and a personality that is still in formation, making it "less
supportable to conclude that even a heinous crime committed by a juvenile
is evidence of irretrievably depraved character."
Justice Kennedy concluded: "When a juvenile offender commits a heinous
crime, the state can exact forfeiture of some of the most basic liberties,
but the state cannot extinguish his life and his potential to attain a
mature understanding of his own humanity."
This analysis, too, provoked Justice Scalia's strong dissent. "By what
conceivable warrant can nine lawyers presume to be the authoritative
conscience of the nation?" he asked. After describing details of Mr.
Simmons's crime, which involved breaking into a woman's home, binding her
with tape and wire and throwing her off a bridge into a river, where she
drowned, Justice Scalia said the majority had failed to justify "a
constitutional imperative that prevents legislatures and juries from
treating exceptional cases in an exceptional way by determining that some
murders are not just the acts of happy-go-lucky teenagers, but heinous
crimes deserving of death."
Justice Scalia reserved his strongest dissent for the final stage of the
majority's analysis, its reference to international developments that have
left the United States alone in supporting juvenile executions. In the
majority opinion, Justice Kennedy said that while the court was not bound
by foreign developments, "it is proper that we acknowledge the
overwhelming weight of international opinion" for its "respected and
significant confirmation for our own conclusions."
Justice Scalia objected that while the court had determined that "the
views of our own citizens are essentially irrelevant," it had wrongly
given "center stage" to the "so-called international community."
THE CONTEXT -- Court Takes Another Step in Reshaping Capital Punishment
After a decade of relative quiet, the Supreme Court has in the last
several years fundamentally reshaped the nation's capital justice system.
It has narrowed the class of people eligible for execution, excluding
juvenile offenders yesterday as it had previously the mentally retarded.
It has rebuked lower courts for sending people to their deaths without
adequate safeguards. And it has paid increasing attention to the
international opposition to capital punishment.
"Early in the 1990's, we reached the high point in deregulating death,"
said Franklin E. Zimring, a law professor at the University of California,
Berkeley, alluding to decisions in which the court refused to hear
defendants' claims of innocence because they were raised too late. "Then
there was very little from the Supreme Court through the 1990's. Now, in a
whole series of substantive and procedural decisions, you have a
re-regulation taking place."
Opinions vary about where the process will end.
"The trend seems to be pushing toward the abolition of capital
punishment," said Rory K. Little, a former Justice Department official who
is now a professor at Hastings College of Law in San Francisco. "But it
would be a mistake to predict that these decisions are leading inexorably
to abolition. It could be that they cut out all the edges and leave the
core that everyone is comfortable with."
Since the Supreme Court's decision banning the execution of the mentally
retarded 3 years ago, lower courts have struggled with how to determine
whether specific defendants should be removed from death row on that
ground. There will be no such problem when it comes to juveniles.
All 72 men on death row for murders they committed when they were 16 or 17
will be spared their lives under the latest decision and will instead
receive the harshest punishment available, typically life without the
possibility of parole.
"These people will all spend the rest of their lives in prison," said
Victor L. Streib, a law professor at Ohio Northern University whose
studies of the juvenile death penalty were cited in yesterday's decision.
"Nobody's getting out."
Similarly, people who had faced capital prosecutions for crimes they
committed as juveniles can now be sentenced, at worst, only to life terms.
That group includes Lee Malvo, the teenage sniper serving a life term in
Prosecutors in Alabama and Louisiana had wanted to try Mr. Malvo on
capital charges for killings there.
Supporters of the death penalty said they were braced for further,
incremental attacks on the use of capital punishment - whether it should
be applied to the mentally ill, older teenagers and defendants claiming
"The next battle is the mentally ill," said Prof. Robert Blecker of the
New York Law School. Given the decisions on the mentally retarded and on
juveniles, Professor Blecker said, "it has a certain appeal."
Professor Blecker said he also expected opponents of the death penalty to
try to move up the age separating juveniles from adults. In 1988, the
Supreme Court set the line at age 16. Yesterday, it rose to 18.
"The interim attack may be to go after the so-called teenage death
penalty, so they'll go after 19-year-olds," he said. "Then they will
redefine juveniles to say it should extend to those under 21."
Richard C. Dieter, the executive director of the Death Penalty Information
Center, a research group opposed to the death penalty, said he expected
the role of race in capital punishment to re-emerge.
"Among the issues the Supreme Court decided around the same time as the
juvenile death penalty was race and the death penalty," Mr. Dieter said,
alluding to a 1987 decision holding that the disparities between whites
and nonwhites at the time did not offend the Constitution. "They may be
ready to take another look."
Professor Zimring said he also expected more attention on procedural
"The areas to watch for large developments in are the adequacy of
representation of counsel and harmless error," he said. Opponents of the
death penalty are often critical of the quality of appointed counsel for
capital defendants and the willingness of courts to overlook some
prosecutorial misconduct by calling it harmless.
The extended discussion of international opposition to the juvenile death
penalty in Justice Anthony M. Kennedy's majority opinion may also have
broader implications, legal experts said.
"All over the world, we have been condemned for this," Professor Streib
said. "We've now joined the rest of the world. Maybe the only country that
still does this now is Iran."
David I. Bruck, a capital defense lawyer and the director of the Virginia
Capital Case Clearinghouse at Washington and Lee University School of Law,
said many Americans did not realize the strength of international
sentiment on this issue.
"Had the decision gone the other way," Mr. Bruck said, "it would have been
another Abu Ghraib. The outcry around the world would have been simply
Even beyond the debate over the juvenile death penalty, Professor Zimring
said, the embarrassment of being out of step with the rest of the world on
capital punishment generally may have played a significant role in the
"The United States and Japan are in their own small suburb of the
developed world," he said, referring to the two major industrialized
nations that make routine use of the death penalty. "In the last 10 years,
the rest of the world's opposition to the death penalty has become
tremendously important to the rest of the world. Capital punishment in
Europe has become a hotter topic in Europe in 2005 than it was in 1965,
when they were busy abolishing it."
Professor Blecker said that analysis was based on faulty premises.
"The problem is that when you look at the opposition of other nations," he
said, "they're looking at governments and not people. Every European
government which abolished the death penalty did it in the face of
overwhelming political support."
In each of the last 2 years, juries imposed only two death sentences on
Yesterday's decision is consistent with those trends, said Joshua K.
Marquis, a co-chairman of the capital litigation committee of the National
District Attorneys Association.
"It's not a harbinger of the end of the death penalty," Mr. Marquis said,
"but simply an indication that the Supreme Court is becoming more
discriminating, as are prosecutors and juries."
(source for both: New York Times)
Justice for Juveniles
With its declaration yesterday that the Eighth Amendment's ban on cruel
and unusual punishment prohibits executing people for crimes they
committed before the age of 18, the Supreme Court recognized the need to
end an egregious practice that has resulted in the nation's moral
The 5-to-4 decision, which will free 72 people from death row in 12
states, was a major turnaround for a court that just 16 years ago found no
reason to outlaw the execution of those who commit a capital crime at the
age of 16 or 17.
Switching sides from his 1989 vote to write yesterday's majority opinion,
Justice Anthony Kennedy cited "evolving standards of decency," long the
touchstone of the court's rulings related to the Eighth Amendment." He
said that some 30 states had rejected the death penalty for youthful
offenders, and that "the United States now stands alone in a world that
has turned its face against the juvenile death penalty."
The decision, which was joined by Justices John Paul Stevens, David
Souter, Ruth Bader Ginsburg and Stephen Breyer, cited the embarrassing
fact that since 1990, only 7 countries other than the United States had
executed people for crimes they committed as juveniles, and even those
seven - Iran, Pakistan, Saudi Arabia, Yemen, Nigeria, China and the
Democratic Republic of Congo - now disavowed the practice. While
acknowledging the reprehensible nature of many violent crimes committed by
juveniles, the majority also cited compelling studies supporting the
conclusion that adolescents lack the requisite maturity and mental
capacity to justify executing them.
It is disappointing that Justice Sandra Day O'Connor, who supported the
court's 2002 decision ending the execution of mentally retarded people on
similar grounds, declined to join yesterday's majority. Nevertheless, it
seems inevitable that one day Americans will look back on this latest
narrowing of the categories of people eligible for execution as another
intermediate step toward the court's entire rejection of the death
penalty. At least that remains our fervent hope.
(source: Editorial, New York Times)
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