August 30, 2002
3 Justices Call for Reviewing Death Sentences for Juveniles
By ADAM LIPTAK
In an unusual dissent from an order declining to stay an execution, three justices of the United States Supreme Court urged the court on Wednesday to reconsider allowing juveniles to be sentenced to death.
The death row inmate in Texas whose appeal was being considered, Toronto M. Patterson, who was 17 when he killed a cousin in 1995, was executed later on Wednesday.
"Given the apparent consensus that exists among the states and in the international community against the execution of a capital sentence imposed on a juvenile offender," Justice John Paul Stevens wrote in the dissent, "I think it would be appropriate to revisit the issue at the earliest opportunity."
Justice Stevens, who dissented when the court last considered the issue in 1989, said he remained convinced that it is unconstitutional to execute people for crimes committed when they are younger than 18.
Justice Ruth Bader Ginsburg, joined by Justice Stephen Breyer, also dissented. They did not say how they would rule, but they added that reconsideration of the constitutionality of the execution of inmates for capital crimes committed when they were juveniles was warranted, given the court's ruling in June barring the execution of the mentally retarded.
Orders denying stay requests are typically terse, one or two sentences, and votes on them are rarely announced. The dissents, first reported by The Associated Press, sent a mixed message, suggesting that several justices regard the matter as important enough to make a public statement but also that the court is sharply divided on whether the question requires reconsideration.
Still, many legal experts contend, the issue of executions for crimes committed as a juvenile will be the focus of the court's next major death penalty case.
"This is the next frontier," said Elisabeth Semel, the director of the death penalty clinic of the Boalt School of Law at the University of California at Berkeley.
In remarks to a group of judges in July, Justice Stevens, who wrote the majority opinion in the decision that barred the execution of the mentally retarded, said DNA testing has inspired concern about wrongful executions generally.
"There is more interest in making sure the death penalty is properly applied," he said.
According to the Death Penalty Information Center, a Washington advocacy group critical of capital punishment, defendants in 16 states and the federal courts must be at least 18 at the time of a murder to face the death penalty. Five more states set the minimum age at 17; the 17 other states that have a death penalty set 16 as the minimum.
Roughly 80 people who committed their crimes as juveniles are on death row. About three-quarters of them were 17 when they committed their crimes; the rest were 16. By contrast, the decision banning executions of the retarded, Atkins v. Virginia, could affect some 200 inmates.
The two issues have moved in tandem in the past. In 1989, in decisions issued on the same day, the court held that the Eighth Amendment's ban on cruel and unusual punishment was not violated by executing people in either group. An earlier decision held that executions for capital offenses committed by those younger than 16 were unconstitutional.
In recently reversing the original decision concerning the retarded, Penry v. Lynaugh, the court's majority — which included the justices dissenting in Wednesday's order as well as Justices Sandra Day O'Connor, Anthony M. Kennedy and David Souter — ruled that the relevant "evolving standards of decency" had evolved rather quickly.
What had changed, for the most part, was the number of states that prohibit the execution of the retarded. In 1989, there were two. By this year, there were 18.
"It is not so much the number of these states that is significant," Justice Stevens wrote for the majority in Atkins, "but the consistency of the direction of the change."
Less evolution has occurred in juvenile offenses.
The 1989 decision allowing executions for capital offenses committed by a juvenile, Stanford v. Kentucky, held that no consensus existed on the subject, though 15 states banned executions of 16-year-olds and 12 more banned them for 17-year-olds.
Those figures approximated then the number of states that ban executing the retarded now, but the Atkins decision focused on trends rather than absolute numbers.
"Although we decided Stanford on the same day as Penry," Justice Stevens wrote in June, "apparently only two state legislatures have raised the threshold age for the imposition of the death penalty," Montana and Indiana.
The legislative trend Atkins relied upon is thus not only unavailable but seems to have been discounted.
Ms. Semel said that developments in the politics of criminal justice unrelated to the death penalty may explain the difference.
"If you look at the death penalty, there is a trend against executing juveniles," she said. "But if you look at the criminal justice world more generally and its treatment of juveniles, it's a much more complicated question. That may be part of what's causing difficulties in the court."
Prosecutors in Mr. Patterson's case argued that a minimum age was arbitrary, and that juries are capable of considering the maturity, experience, intelligence and culpability of older juveniles. They also said that particularly heinous crimes require the death penalty.
The Atkins decision also focused on the relative culpability of mentally retarded offenders. The majority in Atkins found that they often acted on impulse and were followers rather than leaders in groups. The majority also questioned whether the death penalty served the goals of retribution and deterrence when applied to the mentally retarded.
"If you just look at the Atkins decision," said Stephen B. Bright of the Southern Center for Human Rights, "almost everything they say about mentally retarded people applies to children."
The United States is practically alone in sanctioning the execution of juveniles. The only other nations that permit them are Iran, Nigeria, Pakistan and Saudi Arabia.
Justice Stevens appears correct in his reference to a consensus "in the international community." The relevance of such a consensus has, however, been controversial.
"I fail to see," Chief Justice William H. Rehnquist wrote in his dissent in the Atkins case, "how the views of other countries regarding the punishment of their citizens provide any support for the court's ultimate determination."
Mr. Patterson, who was executed after the court failed to grant a stay, was implicated in the killings of three family members and convicted of murdering a 3-year-old cousin.
Mr. Patterson's lawyer, J. Gary Hart, said the court's failure to hear the case may have been influenced by difficult procedural and jurisdictional issues as well as the Eighth Amendment claim about his client's age.
"As soon as they get a case that doesn't have the jurisdictional questions that Patterson had," Mr. Hart said, "they'll probably jump on that right quick."
