NEW YORK — The recent call by three Supreme Court justices for the court to review the constitutionality of executing juveniles gives Americans a prime opportunity to reconsider a practice shunned by almost all other countries.
In a dissent from a court order denying a stay of execution in the case of Toronto Patterson, who was convicted of committing a murder when he was 17, Justice John Paul Stevens, joined by Justices Ruth Bader Ginsburg and Stephen Breyer, cited "the apparent consensus that exists among the states and in the international community" against executing those who commit crimes under the age of 18.
Since capital punishment was reintroduced in the US in 1976, 21 such people have been subjected to the death penalty and another 80 remain on death row.
Sixteen states that allow for the death penalty, plus the federal system, require the defendant to be at least 18 years old to be eligible for execution. When coupled with the states that have abolished the death penalty altogether, Justice Stevens is correct that a consensus is arguably at hand.
International strictures against executing juvenile offenders are even more rigorous. The United States finds itself in the company of only three other countries the Democratic Republic of the Congo, Iran, and Pakistan that have executed juvenile offenders since 2000.
Further narrowing this list, Pakistan recently abolished the death penalty for juvenile offenders and the Democratic Republic of the Congo has established a moratorium on executions. Given that the US Supreme Court cited "evolving standards of decency" in deciding a few months ago in Atkins v. Virginia to outlaw executions of mentally retarded people, such national and worldwide opinion may well eventually have an impact on a future court decision.
But there is another aspect of juvenile executions that parallels the reasoning in Atkins but that has received far less attention than the question of evolving standards.
It is wrong to execute mentally retarded people because of their diminished capacity. Those who are developmentally handicapped are quite appropriately regarded as less responsible and hence less culpable for their actions than those whose development matches the norm.
This is exactly the case with juveniles as well, hard as it may be for many adults to admit it. Research shows that there may be developmental reasons why people under age 18 have difficulty controlling impulses, moderating emotions, and mediating violent behavior. And these may be exacerbated when children are exposed to various forms of physical and mental abuse, as many of those charged with crimes have been. It is no wonder that the American Society for Adolescent Psychiatry has long opposed capital punishment for people under 18.
The struggle to outlaw the execution of minors is likely to be far more difficult than that waged on behalf of mentally retarded prisoners. For one thing, most adult Americans no doubt regard mentally retarded people as worthy of greater sympathy in general than adolescents, with their annoying boom boxes and peculiar clothing habits.
But on another level, society recognizes that adolescents are still children. We do not allow people under 18 to vote or serve on police forces. Every experienced parent can testify that the decisions young people make are often hard to square with what appears to be in their best interests. And it would be a most unusual company that employed a juvenile in a job that carried life or death responsibilities.
Yet when it comes to juvenile crime, we let everything we know about youngsters fly out the window. If "evolving standards of decency" mean anything, they mean that public opinion must eventually catch up with reality. As soon as that happens, executing children will become a thing of the past.
William F. Schulz is executive director of Amnesty International USA.