Justices weigh limit on death penalty

WASHINGTON -- A narrow majority of Supreme Court justices appeared to signal yesterday that they intend to strike down the death penalty for teenage murderers as ''cruel and unusual punishment" because society has reached a consensus that adolescents are less culpable for their actions than adults.

In 1988, the court essentially struck down the death penalty for crimes committed before an offender turned 16, but a year later it declined to extend that safe haven to 16- and 17-year-old killers on the grounds that there was then no consensus on whether it was immoral to execute people for crimes committed as older teenagers.

But since 1989, the number of states that allow and carry out the juvenile death penalty has fallen, argued Seth Waxman, who was solicitor general during the Clinton administration.

Ohio executes man for slaying committed as 18-year-old. A23

New brain studies have shown that adolescents lack some of the physical capacity for self-control that adults have.

All other countries except Somalia have formally rejected the punishment for juveniles, leaving the United States ''alone in the world," said Waxman, representing Christopher Simmons, a Missouri man challenging his death sentence for a murder he committed at age 17.

But James Layton, the Missouri state solicitor, argued that juries should decide how culpable individual adolescent defendants are, because some people mature earlier than others.

He said legislatures -- not courts -- should decide whether all adolescents should be spared the death penalty.

And Layton, echoing the voices of several conservative justices, decried the suggestion that international practices should be relevant to the court's consideration of what the US Constitution demands.

''The court has to be very wary of leading rather than reflecting societal norms," Layton said.

There are 73 people on death rows around the country who committed their crimes while 16 or 17.

Similar issues were also raised two years ago in the court's 6-3 vote to reverse another 1989 ruling and find that society had now reached a consensus that executing mentally retarded killers was ''cruel and unusual punishment."

In reaching that decision, the court noted that an increasing number of states had outlawed that practice.

Justice Sandra Day O'Connor, who voted with the majority in the retardation case, tried to apply similar reasoning to the juvenile execution issue, citing statistics of how many states now limit the death penalty to 18-year-olds.

''It is about the same consensus that existed in mental retardation," she told Layton. ''Aren't we required to look at that?"

According to case briefs, 11 of the 37 states with a death penalty barred execution of offenders under 18 in 1989. Since then, five more of those states have banned such executions, and two added the death penalty but exempted those under 18.

The number of such executions has also fallen: Justice Stephen Breyer counted two last year, down from 13 a decade ago.

O'Connor voted to uphold the death penalty for both juvenile and mentally retarded convicts in 1989, but she reversed herself two years ago in the decision to strike down the death sentence of a mentally retarded man because states were trending toward abolishing that practice. Her decision in this matter, as is often the case, could prove decisive.

Four justices -- David Souter, John Paul Stevens, Ruth Bader Ginsberg, and Breyer -- have consistently opposed the death penalty, so one more vote against it would form a majority.

Three justices -- Antonin Scalia, Clarence Thomas, and Chief Justice William Rehnquist -- voted in the minority that wanted to uphold the constitutionality of allowing states to execute mentally retarded defendants two years ago, and gave no indication that they would reason differently in this case.

The other justice who two years ago opposed executing mentally retarded convicts, Anthony Kennedy, appeared to be skeptical about banning death sentences for 16- and 17-year-olds, citing ''chilling" examples of gruesome murders committed by 17-year-olds.

''A number of juveniles run in gangs with members who are over 18," Kennedy told Waxman.

''If we ruled in your favor, wouldn't that make 16- and 17-year-olds subject to being hit men?"

But Kennedy told Layton that ''world opinion is strongly against this, at least as interpreted by the European Union."

Among those filing briefs to end the juvenile death penalty were former US diplomats, 48 nations including the European Union, Nobel Peace laureates including former president Jimmy Carter, and the Bar of England and Wales.

Those filings prompted a spirited discussion among several justices over whether the Founders intended foreign practices to influence American jurisprudence, with one noting that Thomas Jefferson, in the preamble to the Declaration of Independence, declared that the new nation had to show ''a decent respect to the opinions of mankind."

There followed a pause in the courtroom, broken when Scalia asked: ''What did John Adams think of the French?"

After laughter subsided, Layton said, ''I recall that he did not think highly of them."

The audience included Xiao Yang, the president and chief justice of the Supreme People's Court of China, along with a delegation of Chinese judges.

During the arguments, Waxman cited China as one of the last hold-outs supporting the juvenile death penalty that recently decided to end it.