A month after a Virginia jury balked at sentencing convicted Washington area sniper Lee Boyd Malvo to death, the US Supreme Court has taken up a Missouri case to examine the constitutionality of the juvenile death penalty.
At issue is whether subjecting to capital punishment those who are 16 or 17 years old at the time they commit a serious crime is a violation of the Eighth Amendment's prohibition against cruel and unusual punishment.
The nation's highest court last upheld the practice 15 years ago. But death-penalty opponents are hopeful the tide has turned. The two justices to watch who may well determine the outcome on the sharply divided court are Sandra Day O'Connor and Anthony Kennedy.
Two years ago, the high court in a 6-to-3 decision declared that the execution of those with mental retardation was barred by the Eighth Amendment. The court said that a national consensus had emerged against the practice and that those with mental retardation are less able to appreciate fully how wrong their actions are and to properly assess their own culpability.
The Supreme Court of Missouri adopted the same approach in considering the case of Christopher Simmons, who was 17 years old at the time of his crime. The court, in a 4-to-3 ruling issued last August, sentenced Mr. Simmons to life in prison, overturning his death sentence. It found that a national consensus had emerged against the juvenile death penalty and that evolving standards of decency in America required a life sentence rather than death. "This court concludes that the Supreme Court of the United States would hold that the execution of persons for crimes committed when they were under 18 years of age violates the 'evolving standards of decency that mark the progress of a maturing society,' " writes Judge Laura Denvir Stith.
The decision was praised by opponents of the juvenile death penalty, as a means to force the US Supreme Court to confront the issue. It was condemned by death-penalty supporters as an example of a state high court usurping a role that the US Constitution assigns exclusively to the US Supreme Court.
In the case of Mr. Malvo, a jury deliberating during Christmas week declined to issue a death sentence. The case has yet to work its way through the appeals courts, but lawyers may use it to argue that the jury's action reflects a broader trend in the nation as a whole in opposition to the juvenile death penalty.
"I think that case was an indicator," says Stephen Harper, coordinator of the Juvenile Death Penalty Initiative. "Clearly the time has come for the court to analyze whether this nation has reached a consensus on whether our standards of decency have evolved enough that the juvenile death penalty should be eliminated."