Sniper case revisits juvenile death penalty

What is unusual about the Missouri court's ruling is that the US Supreme Court has never said that juvenile death sentences violate constitutional law. Yet the Missouri high court based its ruling on a prediction of future action by the US Supreme Court.

Kent Scheidegger, a death-penalty expert at the Criminal Justice Legal Foundation in Sacramento, Calif., says there is a good chance the high court will take up the Missouri case - but not to uphold the decision."We have a lower court [in Missouri] that has disobeyed the precedent based on what it thinks the Supreme Court may say in the future," he says.

Mr. Scheidegger says the high court may take the case to put the nation's judges on notice. "They have said more than once to lower courts, 'It is only for us to overrule our own precedents. You must obey them until we do,' " he says.

But others are hopeful that O'Connor, Kennedy, or both will side with the court's liberal wing and set 18 as the minimum age for capital punishment in the US.

"One of the problems in the law is that it is hard to draw bright lines," says Stephen Harper, director of the Juvenile Death Penalty Initiative. "But we have done it for drinking, and driving, for voting, making medical decisions, and seeing restricted movies."

He adds, "We think adolescents are so immature that we are not going to take any chances, so we don't let them drink [alcoholic beverages] until they are 21." Yet, he says, they can be put to death by the state for decisions and actions they take at ages 16 and 17.

Some opponents of the death penalty for juveniles say the Malvo case illustrates how adolescents must be considered less culpable than adults because they are more easily drawn into criminal activity by an older companion.

In the Malvo case, defense lawyers are arguing that Malvo was "brainwashed" to conduct the sniper attacks by his surrogate father, John Allen Muhammad. Rather than arguing that Malvo was merely immature, his lawyers are presenting a version of an insanity defense - that the level of control by Mr. Muhammad rendered Malvo incapable of independent thought or action.

"This is a classic case of someone whose autonomy of thought was severely compromised," says Jeffrey Fagan, a criminologist and juvenile-crime expert at Columbia University in New York.

The verdict in the Malvo case could affect more than just Malvo's future, analysts say. "If the jury is persuaded in the Malvo case that he shouldn't receive the death penalty because of these mitigating factors, then abolishing the juvenile death penalty is a slam dunk," says Temple University's Steinberg. "If you are not going to use it in this case, it is hard to imagine a case where you would."

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