In an important moment of candor, US Supreme Court Justice John Paul Stevens last week criticized the high court's refusal to examine during the current term the constitutionality of applying capital punishment to juveniles.
"In the last 13 years, a national consensus has developed that juvenile offenders should not be executed. No state has lowered the age eligibility to either 16 or 17 since our decision [permitting the execution of 16-year-olds] in 1989," Justice Stevens said in a dissent joined by three other justices. "In fact, the movement is in exactly the opposite direction."
Next Tuesday, voters in Florida will have an opportunity to verify or invalidate Stevens's observation.
Constitutional Amendment No. 1 on the Florida ballot, if approved, would lower Florida's capital-punishment age eligibility from 17 to 16. It would do it by changing Florida's state constitutional ban on "cruel or unusual punishment" to ban instead "cruel and unusual punishment."
The statewide vote comes at a time of increased debate over the possible utility of the juvenile death penalty following the recent arrest of John Lee Malvo, 17, as one of two suspects in the three-week murder spree in the Washington, D.C., area.
The juvenile death penalty in Virginia could become an important tool in that case to help prosecutors pressure Mr. Malvo into testifying against the other suspected sniper, John Allen Muhammad, analysts say.
In addition, if it turns out that Malvo was the primary sniper, prosecutors may seek Malvo's execution as a proportionate punishment for his crimes, they say.
Whether any of these developments have an impact on Florida voters remains unclear. Proponents of the constitutional amendment in Florida say talk about the juvenile death penalty is a smoke screen by anti-death-penalty activists. The measure's intent, they say, is to bring Florida's death-penalty jurisprudence into accord with the rulings of the US Supreme Court.
"This amendment does one simple thing: It changes one word from 'or' to 'and,' " says amendment sponsor Victor Crist, a Republican state senator from Tampa. He says the change will help simplify and streamline death-penalty appeals in Florida, which now take an average 14 to 16 years.
Opponents of the amendment say it is designed to undercut Florida's Supreme Court, whose justices are generally more liberal than the US Supreme Court on death-penalty issues.
"Amendment No. 1 is an attack on the integrity and independence of the Florida Supreme Court and its ability to check and balance the state Legislature on the question of the excessive-punishment clause of the Florida state constitution," says Abraham Bonowitz of Floridians for Alternatives to the Death Penalty.
Mr. Bonowitz says he is also chairman of the One Bad Amendment Political Committee, organized to fight the initiative.
No polls have been taken to measure potential public support or opposition to the measure. In 1998, a similar provision was overwhelmingly approved by voters but was later invalidated by the Florida Supreme Court. In a 4-to-3 decision, the state justices ruled that the wording used on the ballot was too confusing.
Critics say the 2002 version isn't a monument to clarity either. "People are going to look at this and say, 'What is this?' " says Bonowitz.
The explanation of the amendment is 540 words long, far longer than the usual 75-word limit on ballot questions.
A group of election supervisors challenged the wordy question in court, saying it would slow down the voting process and increase ballot printing costs. The courts refused to strike down the initiative.
What most bothers amendment-supporter Mr. Crist is the suggestion from critics that the measure is a backhanded way to facilitate juvenile executions. "I don't know of a single person from the governor on down to the prosecutor who would attempt to take on the public over the execution of a minor. It would be political suicide," Crist says.
Twice, Crist has sponsored bills banning executions of anyone under 18. But both bills died in the Florida House of Representatives. Crist says the prospects for a third bill next term are excellent.
"We don't want to execute minors," he says. "There is no hidden agenda."
The amendment was originally intended to prevent the state Supreme Court from ruling that Florida's electric chair was a form of cruel or unusual punishment. Since then, lawmakers have authorized the use of lethal injection as the preferred execution method in Florida.
Of the 38 states with capital punishment, 17 permit the execution of suspects who are 16 at the time of the crime. Five states, including Florida, set the death-penalty limit at age 17.
Currently, there are three inmates on Florida's death row convicted for crimes committed when they were 17. In addition, there are 230 juveniles in Florida prisons serving life sentences without the possibility of parole.