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Published: Wednesday, 10/20/2004

Juvenile justice

JUDGING from a hearing before the Supreme Court on whether it should uphold capital punishment for convicted 16- and 17-year-old killers, juveniles embarking on a criminal career could be writing their own death sentence. Reservations expressed by Justice Anthony Kennedy about banning executions for those who were under 18 when they committed their crime were well-reasoned and direct.

Justice Kennedy is rightly concerned that such a blanket ban might lead gang leaders to use 16- and 17-year olds as "hit men" because they'd be exempt from capital punishment. "I'm very concerned about that," said the justice. "I'm talking about the deterrent value of the existing rule."

Lawyers arguing on behalf of Missouri death row inmate Christopher Simmons, who faces execution for a murder he committed when he was 17, said deterrence doesn't work on adolescents acting on impulses and reacting to peer pressure.

But Justice Kennedy persisted in his doubts, relaying "chilling" accounts of brutal, calculated murders committed by many 17-year-old offenders that were provided to the court by states hoping to retain the death penalty for juveniles. He also raised questions about a brief submitted by the American Psychological Association, which told the court adolescents are too immature to qualify for capital punishment.

The same organization, said the justice, also advised the court in a case on parental notification for abortion that teenagers were old enough to make such a decision on their own.

To suggest that juveniles can make profound personal decisions about terminating their pregnancies but not be morally culpable for committing heinous criminal activity doesn't hold water.

The fact that Justice Kennedy is troubled by the ramifications of imposing a blanket ban on executions of juveniles is crucial. He and Justice Sandra Day O'Connor are the two members of the high court who could likely decide the outcome of the case.

Unlike the court's 2002 decision to ban capital punishment for mentally retarded offenders, the Simmons case does not present convincing arguments that all juveniles, as the critics insist, are commonly affected by the "transient psychosocial characteristics that rage in adolescents."

Some death row inmates like Christopher Simmons, who broke into a home at 17 with a 15-year-old buddy and ended up throwing a bound woman off a bridge into the Missouri River, are old enough to die.

Not all murders are alike. Not all juveniles are alike. Capital punishment for 16- or 17-year-olds should remain an option open to juries. Hopefully Justices Kennedy and O'Connor will reach the same conclusion.



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