On January 27 of this year, the Supreme Court denied review in Hain v. Mullin. The petition had been brought by a man who was sentenced by an Oklahoma court to die for a murder he committed while only 17 years old.
Many court watchers were surprised. The case seemed to present an ideal opportunity to reconsider the juvenile death penalty, and by all indications, the Court was ready to do just that. Why didn’t it? The answer may lie in the high public profile of the case of 17-year-old Beltway Sniper suspect John Lee Malvo.
To see the significance of the Court’s decision not to reconsider the juvenile death penalty in Hain, it’s necessary to look at its prior views on the issue.
In 1989, in Stanford v. Kentucky, Kevin Stanford, who also committed murder at 17, lost his challenge to the juvenile death penalty. Stanford garnered the support of four dissenting Justices–Brennan, Marshall, Blackmun, and Stevens–but lost the five-justice majority.
On June 20, 2002, the Court decided Atkins v. Virginia. There, it barred execution of the mentally retarded on the ground that it violated the Eighth Amendment’s prohibition against cruel and unusual punishment. Significantly, much of the opinion’s logic has seemed to be applicable in the juvenile death penalty context, too.
Subsequently Stanford–still on death row–sought review from the Court again. On October 21, 2002, the Court denied review. However, in a rare move, four Justices–Breyer, Ginsburg, Souter and Stevens–dissented from the denial. They argued that “[t]he practice of executing [juvenile] offenders is a relic of the past and is inconsistent with evolving standards of decency in a civilized society. We should put an end to this shameful practice.”
Ordinarily, four justices’ votes would have been sufficient for the Court to take a case. But in the 2002 Stanford request for review, as Edward Lazarus explained in an earlier column, a court rule meant that the “rule of four” did not apply.
Then came last month’s petition in Hain. There, the rule of four did apply, meaning only four Justices needed to vote for the Court to grant review. Justices Breyer, Ginsburg, Souter and Stevens had the chance to put the juvenile death penalty’s constitutionality squarely before the Court. So why didn’t they?
They may have feared they might lose on the merits, but in truth, their case on the merits is very strong. So the answer probably lies in politics, not precedent.
The Evidence That Politics, Not Precedent, Is To Blame
In judging particular applications of the death penalty by Eighth Amendment standards, the Supreme Court has frequently utilized two tests. In Atkins, it applied the two tests to find unconstitutional the application of the death penalty to mentally retarded persons. The same result should obtain in the case juvenile offenders.
The first test looks to the punishment’s proportionality, which involves a determination that the gravity of the offense and the culpability of the defendant be commensurate with the harshness of the penalty. The Stanford v. Kentucky dissenters argued that sixteen- and seventeen-year olds, given their emotional and cognitive immaturity, should not be put to death.
Subsequent research has strongly borne out their contentions, suggesting that the human brain is not fully developed until the early 20’s. Evolving cognitive neuroscience, aided by powerful brain imaging techniques that provide a window into a person’s brain, indicates that development of the brain’s frontal lobes–the source of organization, planning, strategizing, judgment, reasoning, and impulse control–is not complete until the age of 21 or 22. Thus, there are good, newly discovered reasons for the court to reconsider its decision in Stanford with respect to this issue.
The second test looks to whether the punishment, as applied, is consistent with and evolving standards of decency. That determination, in turn, takes into account whether there is a national consensus against some executions.
In the case of executing the mentally retarded, the Court determined in Atkins that there was indeed such a consensus. There is considerable evidence that the country is moving towards a consensus on juvenile offenders, as well. And, once again, much of this evidence has accrued since Stanford was decided in 1989.
Twelve abolitionist states currently forbid all executions, including those of juveniles. In addition, 16 of the death penalty states and the federal government limit the penalty to those 18 years of age and older. (By comparison, in 1989, only 12 death penalty states limited the penalty to those over 17; Indiana, Montana, New York, Kansas, and Washington subsequently did so.)
The total number of states that refuse to execute juveniles thus is 28–a strong majority of the 50. Meanwhile, legislation is pending in 11 of the remaining states to ban the penalty. That leaves only a scant 11 states that have the juvenile penalty and are not considering a ban.
In terms of the international community, only Iran currently joins the United States in formally approving the execution of juvenile offenders.
In sum, there is ample evidence for the Court to strike down the juvenile death penalty through the application of either or both of the two tests. So why didn’t it?
The answer may lie in the October 24, 2002 arrest of seventeen-year-old John Lee Malvo, one of two suspects in the “Beltway Sniper” case, which came on the heels of the Stanford dissent, and long preceded the recent decision in Hain. Malvo’s trial is set for November 10 of this year, and he will be eligible for the death penalty if convicted.
Malvo has been demonized in the press (though he is far more sympathetic than he might seem, for reasons I discussed in a prior column, including the influence of his father-figure co-defendant).
With public opinion running high in favor of executing Malvo, the four justices with the power to grant review in Hain may well have decided that it was not the time to try to convince another justice to vote with them to invalidate the juvenile death penalty.
After all, several of the justices live in Virginia, where many of the shootings took place. And all nine, of course, work in Washington, D.C., which was also under threat from the snipers.
Anti-Death Penalty Advocates Should Focus on State Initiatives
What hope does the future hold that the Court will take up the issue of executing juvenile offenders? Virtually none.
If one of the four justices leaves the Court, for some reason, before review is granted on another juvenile death penalty case, President Bush will surely appoint a pro-death judge to the Court. Bush has pronounced Justices Scalia and Thomas, the most passionate pro-death justices on the court, to be his favorite jurists. (Indeed, Scalia expresses a macabre exuberance for the death penalty that is unseemly for any judge, let alone a justice on the highest court in the land.)
The refusal to consider the question will likely result in Hain’s execution. In addition, 80 other young men on death row for crimes committed when they were 16 and 17 will soon share in Hain’s fate. And Malvo, if convicted, will likely join them.
That is why Washington and Lee University (Virginia) Law School Professor Roger Groot has volunteered his law school’s capital case legal-aid clinic to aid in Malvo’s trial defense. The only way to avoid a death sentence in Virginia, he says, is at the trial and sentencing stage: “In Virginia,” he noted, “if you get a capital sentence, we push paper around for a couple of years and then we kill you.”
There is not likely to be any reprieve in the Supreme Court for Malvo and other similar defendants for years, even generations, to come. So, it will be up to the individual states to follow the current trend, impose their own standards of decency, and abolish the death penalty for juveniles.
Given the Court’s recent propensity to support states’ rights, there would be little the Court could do to stem that tide. Even Attorney General Ashcroft, as was reported in a recent New York Times article, is insisting that U.S. Attorneys who seek the death penalty for federal crimes in states that do not have the death penalty for state offenses, can’t force the states to change their own laws.
So, let the federal government and its judges continue their promotion of death. Anti-death penalty supporters need to focus their attention on the states and appeal to the humanity of their own citizens–bypassing a Supreme Court committed more to politics than ruling on an issue that should, in the hearts and minds of compassionate Americans, transcend conservative ideology.
ELAINE CASSEL practices law in Virginia and the District of Columbia and is a contributor to Counterpunch and Findlaw.com, where this essay originally appeared. She is the chair of the American Bar Association’s Behavioral Science Committee of the Science and Technology Law Section and is the author, with Douglas Bernstein, of Criminal Behavior (Allyn & Bacon, 2001). She also teaches law and psychology. She can be reached at: firstname.lastname@example.org.