Nine months after he came within hours of execution, Napoleon Beazley, 26, whose case has prompted debate over the execution of those who commit murder before the age of 18, is scheduled to die by lethal injection tomorrow night in Texas.
The Supreme Court on Friday denied Mr. Beazley's request for a stay and review of his case. His lawyers had argued that executing Mr. Beazley, who was 17 when he killed John Luttig, 63, in a botched carjacking, would violate the Eighth Amendment's provision against cruel and unusual punishment.
The lawyers also argued that executing an inmate who was under 18 at the time of his crime would violate international treaties on civil and political rights.
Just as they had last August, when Mr. Beazley had another appeal before the Supreme Court, three justices, Antonin Scalia, David H. Souter and Clarence Thomas, disqualified themselves because each had had a professional relationship with the victim's son, J. Michael Luttig, a federal appeals judge in Virginia.
Mr. Beazley's lawyer Walter C. Long said on Friday that he would file one final petition with the Supreme Court tomorrow morning.
Also tomorrow morning, the 17-member Texas Board of Pardons and Paroles will vote on Mr. Beazley's petition for clemency in the form of a temporary reprieve or a commutation to a life sentence. Last August, the board voted 10 to 6 against clemency, a slim margin in a state where the pardon board's votes are often unanimously in favor of execution.
Mr. Beazley shot Mr. Luttig, who was a civic leader and church elder in Tyler, Tex., twice in the head in April 1994 while he and two friends tried to steal Mr. Luttig's Mercedes-Benz from his driveway. Mr. Luttig's wife, Bobbie, escaped injury by falling to the pavement and playing dead.
Last August, about four hours before Mr. Beazley was to be executed, the Texas Court of Criminal Appeals granted a stay. When that court lifted its order last month, Mr. Beazley's trial judge, Cynthia Stevens Kent, who last August asked Gov. Rick Perry to commute the sentence because of Mr. Beazley's age, set the execution date.
International opposition to Mr. Beazley's execution is mounting because of his age at the time of the crime. Bishop Desmond Tutu of South Africa recently wrote a letter to the Texas pardons board asking for clemency. "I am astounded that Texas and a few other states in the United States take children from their families and execute them," Bishop Tutu wrote.
In this country, there are signs of growing opposition to the death penalty for those who commit murder before they are 18. Of the 38 states that permit the death penalty, 22 permit the execution of juvenile offenders and only 7 of those states have executed juvenile offenders since the death penalty was reinstated in the 1970's.
This year Indiana abolished the death penalty for people who commit murder before the age of 18.
Mr. Beazley, who was president of his senior class and a football star, lived in Grapeland, a tiny town about 60 miles from Tyler. He had no arrest record, though he has said he sold crack and owned a gun. He has apologized to the Luttig family and said there was no excuse for what he had done.
"Napoleon Beazley should be executed for the predatory nature of this case," Ed Marty, an assistant district attorney who handled the case on appeal, said in a telephone interview on Friday. "Why did he have to shoot John Luttig to get his Mercedes?"
Mr. Marty dismissed the defense's contention that while juvenile offenders should be held accountable and punished for their crimes, they are not as morally culpable as adults. In their appeal, Mr. Beazley's lawyers cited a growing body of scientific evidence that the brain is still developing through adolescence and so those under 18 are developmentally unable to "control their actions as a mature adult would."
Mr. Marty said, "That's junk science."
Paddy Burwell is a pardons board member who voted for clemency for Mr. Beazley last year. "I lay awake thinking about that the other night," Mr. Burwell said, referring to the issue of the killer's age. "I could not commute a person just because he was 17 at the time of the crime."
But Mr. Burwell, 69, a rancher and a supporter of the death penalty, said that tomorrow he would again vote for clemency. "I don't think he got a fair trial," Mr. Burwell said.
Every member of Mr. Beazley's jury was white. "He was not tried by a jury of his peers," Mr. Burwell said. Mr. Beazley is black.
Mr. Burwell estimated that in three years on the board, he has cast 50 to 60 votes for execution while supporting petitions for clemency five or six times.
Mr. Burwell said that in the Beazley case he was troubled by reports that the victim's son, Judge Luttig, had moved his office to Tyler from Virginia for the trial and that prosecutors regularly consulted with him. In addition, Mr. Burwell said he did not think prosecutors had proved Mr. Beazley's "future dangerousness," which is necessary for a death sentence.
Mr. Beazley needs nine votes from the pardons board for clemency. Mr. Burwell said he expected the vote to be close.
The pardons board makes recommendations on executions to the governor, who can either accept or reject those recommendations. The board has voted for clemency only once in the last 30 years, in 1998. Texas has executed 12 people this year.
