When a Virginia jury voted against a death sentence for Washington-area sniper John Lee Malvo this week, it followed a national trend away from sentencing juvenile offenders to death.
The annual death-sentence rate for juvenile offenses has declined rapidly in recent years and death-penalty opponents say it's only a matter of time before capital punishment for those under 18 is eliminated.
"The question is whether it will end by states passing laws banning it, the Supreme Court ruling it unconstitutional, or juries ending the practice by refusing to vote in favor of it," says Victor L. Streib, a law professor at Ohio Northern University in Ada, Ohio.
Of those now on death row, 78 were juveniles when they committed their crimes, according to Professor Streib. Twenty-one states allow death sentences to be imposed on juvenile offenders who were at least 16 at the time of their crimes - a requirement of a 1988 Supreme Court ruling, which said that executing a 15-year-old was unconstitutional. The US is the only country besides Iran that formally allows the death penalty for juveniles; the practice is prohibited under several international treaties.
The 22 juvenile offenders executed since 1973 represent only 2.5 percent of the total executions during that period. Still, death-penalty opponents view this as the next place to roll back capital punishment.
Those opposing capital punishment had feared that the heinous nature of the crimes with which Malvo is connected - 10 people were killed during a three-week shooting spree - would bring on a death sentence and set back their cause. Instead, the sentence of two simultaneous life terms without parole could pave the way for the Supreme Court to outlaw the practice, experts say. Earlier this year, the Supreme Court ruled that executing mentally retarded defendants is unconstitutional cruel and unusual punishment. And four Supreme Court justices have publicly announced their willingness to strike down the juvenile death penalty as well.
Experts say Malvo was far from a typical juvenile defendant in a capital case. Defense attorneys argued that John Allen Muhammad brainwashed him. "Given the elder sniper's influence upon him as a surrogate father figure, we cannot say [Malvo] was the worst of the worst," says New York Law School Prof. Robert Blecker.
Malvo, who was four months shy of his 18th birthday at the time of the attacks, may also have been helped by his youthful appearance at the trial, attorneys on both sides of the case agreed.
It's a setback for death-penalty advocates, including Attorney General John Ashcroft who argued that both suspects deserved the "ultimate sanction."
The verdict was all the more striking, given that it came in a conservative part of Virginia, one of only three states to have executed multiple juvenile offenders since 1973.
Sentencing juveniles to death has been controversial since the days of the Plymouth Colony in 1600s, says Cornell Prof. Joan Jacobs Brumberg.
What's changed, says Ms. Brumberg, is new research by developmental psychologists that suggests adolescent minds aren't yet fully formed - and so don't reason and judge as effectively as the minds of adults. "There are more people today who think it's inappropriate to conflate childhood and adulthood," says Brumberg.
Nonetheless, Mr. Blecker says his 2,000 hours of jailhouse interviews over 13 years with juvenile offenders have convinced him that some convicted youth street killers "do deserve to die."