The Supreme Court is considering to end the execution of killers who were under 18 when they committed their crimes. The court will reconsider the constitutionality of "cruel and unusual punishment" if imposing the death penalty on juveniles who were 16 or 17 years old at the time of their crimes.
The issue of applying the death penalty in cases involving teenagers arose during the trial of Lee Boyd Malvo, 18, who was convicted last month of being John Allen Muhammad's partner in an October 2002 shooting spree in the Washington area.
Assistant Public Defender Stephen Harper, adjunct professor of Juvenile
Justice at University of Miami School of Law, will be online Monday, Jan. 26 at 3 p.m. ET to discuss the Supreme Court decision to revisit the death penalty for teens.
The transcript follows.
Editor's Note: Washingtonpost.com moderators retain editorial control over Live Online discussions and choose the most relevant questions for guests and hosts; guests and hosts can decline to answer questions.
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Stephen Harper: Good afternoon. This is Stephen Harper. I am a lawyer and an adjunct professor at the University of Miami School of Law. I teach a course in Juvenile Law and have been working on juvenile death penalty issues.
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Fredericksburg, Va.:
I just have a comment. I would hope that they wouldn't use the Malvo case as a specific reason to revisit the issue of teens and the death penalty. #1 he was way too close to 18 to make a difference in the maturity of his mind. #2 I honestly feel that he and especially Mohammed counted on Malvos age to be in his favor from the beginning in case they got caught. #3rd and final issue, this wasn't an act of passion where a juvenile would not be able to restrain himself in time of stress, this was out and out terrorism with plenty of fore thought...
Stephen Harper: The Court will not look at the Malvo case, but the case before it as well as a number of other factors. It must consider whether the execution of offenders under the age of 18 at the time of the offense now violates the 8th Amendment of the US Constitution which bars "cruel and unusual punishment." The Court looks at "evolving standards of decency that mark the progress of a maturing society" as a way of determining cruel and unusual punishment. It will look at a number of factors which measure "evolving standards." The first issue it must take up is whether 16 and 17 year olds are less responsible than adults and whether they should not, like the mentally retarded, face the ultimate punishment. The next thing it will do is primary measure is state legislative action, that is how many states have the juvenile death penalty, how many have used it, how many have gotten rid of it. It also now measures polls, professional organizational positions and other things.
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Norfolk, Va.:
How do you think the Malvo case has affected the Juvenile death penalty issue?
Stephen Harper: The Malvo case showed that the public is reluctant to condemn juvenile offenders to death. A recent poll by ABC News found that 62 per cent of Americans favored life in prison for juvenile offenders.
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Silver Spring, Md.:
Do other so-called first-world countries execute juveniles or is the United States alone? Do you think we will eventually do away with this practice?
Stephen Harper: The United States is one of the only countries in the world that executes juvenile offenders. It has executed more juvenile offenders in the last 13 years than all of the other countries in the world combined. The only other countries that have executed juveniles since 1990 are China,Iran, Nigeria, Pakistan, Saudi Arabia,Yemen and the Democratic Republic of Congo. Yemen, Saudi Arabia, Pakistan and China say they will no longer execute juveniles.
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Washington, D.C.:
Is there any indication that the American public is against the execution of juveniles?
Stephen Harper: Beyond the ABC News poll already mentioned, a national 2000 poll conducted by the Houston Chronicle found that solid support for executing juvenile offenders has shrunk to just 26%. A Gallop poll released in May, 2002 again found only 26% of Americans support the death penalty for offenders under eighteen. Polls in Georgia, Texas, Kentucky, Missouri, and Oklahoma also failed to show any significant support for the juvenile death penalty in those individual states.
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Silver Spring, Md.:
What makes executing a juvenile more "cruel and unusual" than executing an adult? Do you think the Supreme Court will be able to determine that distinction in its next decision?
washingtonpost.com: Supreme Court Will Revisit Execution of Teenage Killers (Post, Jan. 26)
Stephen Harper: The Supreme Court already dealt with this distinction when dealing with the mentally retarded. It held that the mentally retarded should be held responsible, but not subject to the ultimate punishment. It looked to the law and science available which demonstrated that the mentally retarded were significantly less responsible than adults. It will do much the same when it comes to adolescents.
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Washington, D.C.:
How is the number 18 significant? What is the history, etc? Also curious about 21, why that number is used for certain legal tests.
Thanks, Ryan
Stephen Harper: 18 is more legally significant than it is developmentally significant, according to experts in adolescence that I have spoken to. But,it has long been seen as the age of majority and the legal "cut off." We do not allow those under eighteen to assume the major responsibilities of adulthood such as military combat service, voting, entering into contracts, serving on juries or grand juries or making medical decisions. Indeed we do not let them consume alcohol until they are 21. International law and treaties also uses 18 as the age below which the death penalty is prohibited.
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Bowie, Md.:
The execution of minors is wrong! Minors under the age of 18 should at least be given the chance to rehabilitate. There's a good chance that they can grow up to be productive citizens.
Stephen Harper: This is indeed another reason many are against the juvenile death penalty. Because their personalities are not yet fixed, adolescents are more amenable to rehabilitation and less deserving of the ultimate sanction of our criminal justice system.
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Alexandria, Va.:
Isn't this debate in the wrong branch of government? Yes, the 8th Amendment bars Cruel and Unusual Punishment, but the 14th states that no person shall be deprived of life, liberty, or property without due process of law. I read the 14th to say that with due process, a person (even juvenile) can be deprived of life.
Let this issue be argued where it belongs: in the 50 State Legislatures!
Stephen Harper: The Court has a role determining what is cruel and unusual punishment under the 8th amendment. State legislatures are also addressing legislation to eliminate the juvenile death penalty in South Dakota, Florida, New Hampshire, Arizona, Wyoming, Kentucky and perhaps more as sessions begin. Next year Nevada and Arkansas will also be addressing the issue.
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Arlington, Va.:
Given the Court's earlier ruling on mental retardation, is a similar ruling a foregone conclusion here? What variables, other than the "evolving standards of decency" would deter a substantially similar decision and an identical split among the justices on the issue of juveniles?
Stephen Harper: The question here is how will the Court measure it when it comes to juvenile offenders?
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Alexandria, Va.:
In one of your responses, you mention "science" is there scientific evidence that shows that juveniles shouldn't get the death penalty?
Stephen Harper: There is significant research on the adolescent brain showing that it is still developing into late adolescence and developing in those areas of the brain that deal with impulse control, judgment and regulating emotions.
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Largo, Fla.:
Seems to me that life in prison for an 18 year old is bordering on "cruel and unusual punishment" in and of itself. My question is why can't we just set a minimum age for the death penalty, say 18, 19, 21, whatever and stick to it? If the person is underage when the crime was committed, than they're not eligible for the death penalty. That's is.
Stephen Harper: The Court will only address the narrow issue of whether executing 16 and 17 year olds has become "cruel and unusual punishment." As to setting higher ages, that is the role of legislatures.
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Captola, Calif.:
If the USSC reverses Thompson and holds death penalty & life sentences unconstitutional, what effect will this have on federal & state law? How about life sentences for juveniles? Also, will this help pave the way for the US to ratify the Convention on the Rights of the Child?
Thank you,
EBR
Stephen Harper: If it rules the death penalty unconstitutional for 16 and 17 year olds, it will only affect the death penalty, but will bar it in all states. It will not effect life sentences. Whether it will affect ratification of the UN Convention on the Rights of the Child is unknown. My understanding is that some in the US have other concerns about the Convention as well.
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Boston, Mass.:
In the case in question, what is to make the court believe that if the defendant had been a few months older he wouldn't have thrown that poor woman off a bridge. Is there a magical moment between 17 and 18 that someone realizes it is wrong to throw someone off a bridge to drown. If our society is so sophisticated and civil why does a 17 year old have to be told that sort of thing is wrong?
Stephen Harper: While there are indeed widespread individual differences among adolescents, again, we draw bright legal lines all of the time. Those a day under 18 cannot enter into contracts, enter the military, make medical decisions, vote or serve on juries. Indeed, they can't consume alcohol until they are 21. It is not so much that they don't know right from wrong at that age, they do. The narrow issue before the Court is should adolescents who are definitely less mature and less responsible than adults be subject to the same punishment?
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Alexandria, Va.:
Thanks for educating us on this issue. I'm interested in finding out more about juveniles and the death penalty. Do you know about any organizations who work on this specific issue? How can I get more involved?
Stephen Harper: www.abanet.org/crimjust/juvjus.html.
American Bar Association's Juvenile Justice Center
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Boston, Mass.:
Atkins, in 2002, rejected capital punishment for the mentally retarded by a 6-3 margin. First, do you think that invalidation of capital punishment for minors necessarily follows from Atkins, given the similar arguments involved, regarding reduced culpability, etc.? Second, are Court-watchers making guesses as to how big a split Roper v. Simmons will be?
Stephen Harper: There seems to be little doubt that adolescents are less responsible in similar, if not in exactly the same, ways as the mentally retarded. (Obviously, adolescents will continue to mature.) The question is will the Court recognize the national consensus that has evolved?
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Washington, D.C.:
Is there a partisan split on the issue that has forced the issue into the background for so long, or do you perceive that the Court hasn't taken up the juvenile death penalty issue for other reasons?
Stephen Harper: Not clear to me whether there are any other reasons why the Court has not taken up the issue. But, the Court by definition, will leave a case dealing with "evolving standards of decency" alone for a while and get back to it sometime later. That is where we are now.
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Stephen Harper: I have to go. Sorry I could not take all of the questions. Thanks for your time and interest. We shall see where this goes.
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