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Justices skirt death penalty issue

By Curtis J. SitomerStaff writer of The Christian Science Monitor / June 30, 1988



Boston

A conservatively bent United States Supreme Court stopped just short of declaring the so-called teen-age death penalty unconstitutional yesterday. This doused hopes of those who are urging the court to find a vehicle to abolish capital punishment in the US for both adults and those who commit crimes of murder as minors.

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The justices did, however, in this case, strike down the death sentence of an Oklahoma man who was 15 years old when he was convicted of murder and sentenced to be executed.

Death-penalty experts say this ruling - although indecisive - leaves the door open for future cases on capital sentencing of teen-agers.

``The court appears to be moving away from the juvenile death penalty - while not yet shutting the door on it,'' comments Victor Streib, a professor at Cleveland-Marshall College of Law in Ohio.

Professor Streib, who has recently written a book on this issue, says that from a practical standpoint prosecutors are reluctant to seek the death penalty for juveniles and, when they do, juries are refusing to invoke it.

Law professor Timothy O'Neill of the John Marshall Law School in Chicago expects the issue to come before the court again in the next few years - with some specific judicial interpretation of how the term juvenile is defined for death-penalty purposes.

``Where do you draw the line?'' he asks. ``Fourteen, 16, 18?''

Professor O'Neill suggests that a ``bright line rule'' of state voting age - to allow those on death row to at least have had a say in selecting legislators who write laws setting such a penalty.

The court's Wednesday ruling in Thompson v. Oklahoma appears to follow a pattern that the justices have adopted in recent years. They carefully scrutinize the evidence in individual capital cases - and invalidate death sentences where they find improper judicial procedures or specific questions of constitutionality relating to a particular case.

But the court's majority has consistently refused to term capital punishment ``cruel and unusual'' - and in violation of Eighth Amendment protections.

Last year, the high tribunal also narrowly ruled that capital punishment was legal, even if there may be evidence of racial bias in choice of prosecutions.

The court's liberal-to-moderate bloc - Associate Justices Harry Blackmun, William Brennan, Thurgood Marshall, and John Paul Stevens - held in yesterday's ruling that states are constitutionally barred from executing those who committed their crimes before they reached age 16.

But three conservative jurists - Chief Justice William Rehnquist, and Associate Justices Antonin Scalia and Byron White - said that there is no such constitutional limitation on imposing the death penalty.

Associate Justice Sandra Day O'Connor refrained from ruling on the issue of constitutionality but voted to overturn the Oklahoma court's death sentence of a juvenile murderer.

Associate Justice Anthony Kennedy, who joined the court after oral arguments were heard, did not participate.

Justices Scalia, Rehnquist, and White held there is no reason that some minors cannot be tried and sentenced as adults.

Justice Stevens, writing for the dissenters, said: ``We are not persuaded that the imposition of the death penalty for offenses committed by persons under 16 years of age has made, or can be expected to make, any measurable contribution to the goals that capital punishment is intended to achieve.''

Staff writer Owen Thomas contributed to this report.