Supreme Court: Juvenile Death Penalty

The Supreme Court, in a landmark death penalty decision, today barred executions of people under 18 years of age at the time of their crimes.

Stephen Harper, adjunct professor at the University of Miami School of Law, discussed his support of the decision.

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: Hello. This is Stephen Harper. I am a capital defense lawyer and adjunct professor of juvenile law. I have been working on ending the juvenile death penalty with a number of groups and organizations and countries. I will be on line for the next 1/2 hour or so and will try to answer as many questions as I can.

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Alexandria, Va.: How many people under 18 have already been executed ?

Stephen Harper: Since the reinstitution of the death penalty in the 70's 22 juvenile offenders have been executed in 7 states in the U.S.

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Fairfax, Va.: Does this ruling end any future trial for sniper Lee Malvo in Virginia and anywhere else for that matter?

Stephen Harper: This ruling does not end any future trial for John Lee Malvo. It does prevent him from receiving the sentence of death.

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Milwaukee, Wis.: Having recently witnessed the exchange/debate between Justice Scalia and Justice Breyer at American University, it seems that the issue of citing other nations is a deeply divisive one within the Court. Having said this, do you believe that, in the case of Roper, it was appropriate or necessary for Justice Kennedy to refer to "the overwhelming weight of international opinion against the juvenile death penalty"? And, in general, what are the drawbacks to citing certain nations as good or bad models for the United States?

Stephen Harper: I think that when measuring "evolving standards of decency" which help the Court determine what has become "cruel and unusual punishment", international trends and standards are indeed relevant although not dispositive.

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Lovettsville, Va.: What impact will this ruling have on sentencing juveniles to life imprisonment without the possibility of parole?

Stephen Harper: Ruling will have no immediate impact on kids sentenced to LWOP. Opinion only focuses on whether it is now prohibited to sentence 16 and 17 year old offenders to death, given measures of evolving standards of decency.

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Harrisburg, Pa.: What is the medical/psychological basis for the decision?

Stephen Harper: Medical/scientific basis is that since the Court last looked at this issue more than 15 years ago, the behavioral and neurological sciences have found that adolescents are less culpable. They don't think in the same way as adults, they have less impulse control and sense of consequence. All of this has an effect on their level of culpability.

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Washington, D.C.: I'm against the death penalty, so I'm happy with the result of this case. But the reasnoning of the majority seems troubling. Justice Scalia, in dissent, points out that the majority found a "national consensus" where none existed a mere 15 years ago. Moreover, if that "national consensus" were to change, would capital punishment for minors then become legal again?

Stephen Harper: There has been significant movement in the last 15 years.
A majority of states have recognized that subjecting adolescents to the death penalty is contrary to basic principles of American justice and to evolving standards of decency. Of the thirty-eight states that permit the death penalty, only twenty now have statutes permitting the execution of persons for crimes committed under the age of eighteen. Of those twenty states, only eleven have juvenile offenders on their death rows. Of those twenty states, only seven have carried out actual executions since the reinstatement of the death penalty in 1976. 7 states eliminated it.

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El Dorado Hills, Calif.: Mr Harper,

This appears to be an outright attempt by the slim court majority to impose its moral understanding of the death penalty on the nation, without regard to the number of death penalty states (a majority) which allowed the death penalty for minors. Although I'm not a strong death penalty proponent, I'm outraged by the courts logic and perceived omnipotence in judging the nation's opinion despite laws enacted by freely elected legislatures. Your thoughts?

Stephen Harper: As already stated, the vast majority of states do not have or impose the death penalty for juveniles. Moreover, in our constitutional republic, the U.S. Supreme Court has a long established independent duty to bring its "jdgment to bear"in determining what is cruel and unusual punishment. And they have also considered legislation and the fact that it has all gone in one direction.

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Milwaukee, Wis.: "The behavioral and neurological sciences have found that adolescents are less culpable. They don't think in the same way as adults, they have less impulse control and sense of consequence. All of this has an effect on their level of culpability."

If that's so, shouldn't a 40-year-old who functions at the cognitive, neurological and behavioral level of a 17-year-old also be seen as not "culpable."

Stephen Harper: One of the measures of mental retardation is indeed what mental age the person really is. That measure goes from 18 down.

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El Dorado Hills, Calif.: Mr Harper

Seeing how the court recognized "evolving standards of decency" in its opinion, shouldn't the court equally recognize the evolving early maturity of our youth population? Certainly most 16 and 17 year-olds today are much more sophisticated and informed then their likenesses were a decade or more ago. Using the court's 'evolving' logic, one could easily conclude that there is very little difference between 17 and 18 year-olds when it comes to the mental capacity to commit murder.

Stephen Harper: That is simply not what the research of the behavioral and brain sciences are finding. Adolescents 16 and 17 years of age are simply less mature. Again, the issue is not that they don't know right from wrong, but whether the less mature should be subject to the ultimate punishment. The Court answered NO.

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Washington, D.C.: If the question of whether the execution of minors is cruel and unusual depends on the national concensus, now that laws allowing the execution of minors are unconstitutional, isn't it impossible for the national concensus to ever swing the other way. In other words, the court seemed to find it important that a minority of states had laws allowing the execution of minors. From this point forward no additional states will be able to adopt laws allowing for minors to be executed. Thus, the "national concensus" seems to be set in stone from here on out. Is this accurate?

Stephen Harper: It is accurate. Indeed, Justice Scalia has long pointed out that the ratchet only goes one way. Once found unconstitutional it will be permanent.

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Alexandria, Va.: I've only has a chance to skim the decision, but I am fascinated by Scalia's dissent. Does he reject completely that the 8th amendment analysis of 'evolving standards of decency'? By his standards, would the type of punishments which were not cruel and unusual at the time of the adopting of the Constitution still be usable today as long as approved by legislatures? That might be a little extreme, but I only skimmed briefly. I don't suppose you could explain Scalia's dissent concisely.

Stephen Harper: Even Justice Scalia has to concede that "original intent" is meaningless when intrepreting the 8th Amendment ban on cruel unusual punishment. We don't execute people who steal horses, we don't have child labor, etc. We have to look at evolving standards of decency. Justice Scalia is critical of how the majorities have applied evolving standards of decency, but I have never seen a workable test suggested by him.

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Arlington, Va.: As the Court overturned Stanford v. Kentucky in this case and decided that it is no longer constitutional to subject minors to capital punishment, do you think it would be proper for the court to overturn other rulings such as Roe v. Wade if they determined that a new national consensus or a new "standard of decency" has been reached?

Stephen Harper: Roe v Wade addresses a different constitutional issue. The issue is Roper v Simmons concerns the 8th Amendment prohibition on cruel and unusual punishment. Constitutional analysis in this area looks at evolving standards of decency and consensus as a way of determining only what has become cruel and unusual.

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Stephen Harper: I am sorry that I have to go. I only answered a handful of questions, but I am sure that there will be a lot of disussion and analysis over the next few days in the media.

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