Last year, the court actually reinstated the death penalty of a juvenile offender in Oklahoma after a federal appeals court had blocked it. The vote was 5 to 4, with Kennedy and O'Connor in the majority.
The court intervened in the Simmons case only after the Missouri Supreme Court threw out Simmons's sentence last year on the grounds that the 1989 precedent had, indeed, been superseded by the 2002 case.
Waxman pressed a similar argument yesterday. He told the court that the execution of juvenile criminals conflicts with a "robust consensus" reflected in the recent decisions of several states to ban the practice and in the decreasing frequency with which juries impose the death penalty on those under 18. Scientific evidence shows that the areas of the brain in charge of judgment and impulse control are incomplete in adolescents, he said.
Death is the wrong punishment for crimes that reflect "the transient psychosocial characteristics that rage in adolescents," Waxman said.
But Kennedy noted that the American Psychological Association -- which told the court in a brief in this case that adolescents are too immature to qualify for capital punishment -- had also said in a case about parental notification for abortion that teenagers are old enough to make such a decision on their own. "They flip-flopped," Kennedy said.
Waxman said there is no inconsistency because "what was at issue in that case was the competency to decide," while the question in this case involves "factors why adolescents are less morally culpable."
He urged the court to act based on a "worldwide consensus" against the death penalty for juveniles, noting that, except for the United States, all 110 countries that have capital punishment do not apply it to those under 18.
States that permit it "are not just alone in this country, they are alone in the world," he said.
On this point, Kennedy appeared to sympathize with Waxman, asking Missouri state Solicitor James R. Layton: "There seems to be a very substantial demonstration that world opinion is against us. . . . Does that have a bearing on what's 'unusual' " punishment?"
Layton replied that "what matters" is U.S. legislation.
O'Connor's only remark hinted at some openness to Waxman's position.
Addressing Layton, she noted that the number of states that either do not have capital punishment or set the age at 18 is "about the same" as the number of those with bans on executing the retarded in 2002, which was 30.
"There is no inexorable trend here," Layton replied.
The case is Roper v. Simmons, No. 03-633. A decision is expected by July.
