for Young Sniper Could Spur Change in Law
The New York Times
December 25, 2003
Dec. 24 — The decision by a jury here to spare Lee Malvo's
life after finding him guilty in last year's Washington-area sniper
rampage may hasten a movement to abolish the death penalty for
juvenile killers, legal experts say.
The movement had
stalled, they say, because Mr. Malvo's crimes, at age 17, were
so troubling. Now, though, the jury's decision to let him live
may prompt reconsideration of whether executing juvenile offenders
is ever proper.
Though the death
penalty for murders committed by 16- and 17-year-olds remains
available in a minority of states, it is being imposed with less
and less frequency. Public support for it is limited. It is essentially
unknown in the rest of the world.
And the United States
Supreme Court seems poised to reconsider two of its rulings, issued
in 1988 and 1989, that together banned execution of those who
were under 16 when they committed their crimes but allowed it
for those who were 16 or over.
say the Malvo case may have been a factor in the Supreme Court's
recent decisions not to accept cases on the issue.
"Some of the
speculation has been that they really didn't want to take the
Malvo case out of the hands of the jury," Victor L. Streib,
a law professor at Ohio Northern University who is an expert on
the juvenile death penalty, said of the justices.
But four of those
justices have indicated their discomfort with the execution of
One is Justice John
Paul Stevens, who dissented last year from a court decision not
to take up the constitutionality of the practice.
offenders is a relic of the past," Justice Stevens wrote.
"We should put an end to this shameful practice."
G. Breyer, Ruth Bader Ginsburg and David H. Souter joined the
Even some death penalty
supporters say it is only a matter of time before the Supreme
Court bans the execution of juvenile criminals.
"It would have
happened already were it not for Malvo," said Robert Blecker,
a professor at New York Law School, who called himself a retributionist
and added that such a decision would be constitutionally and morally
One opponent of the
juvenile death penalty, Elizabeth S. Scott, a law professor at
the University of Virginia, said the jury in the Malvo case had
sent an important message.
"The Malvo verdict
should be taken as a signal that the public has little enthusiasm
for executing juveniles," Professor Scott said, "even
for the most horrendous of crimes, and that people understand
that young offenders are less culpable than adults."
As measured by opinion
polls, public support for the death penalty itself remains strong.
But it has dipped lately. A recent Gallup poll measured it at
64 percent, down six to eight percentage points from a year earlier
and, says the Death Penalty Information Center, an opponent of
capital punishment, the lowest level in 25 years.
Legal experts say
possible explanations include public discomfort over a number
of cases in which DNA and other evidence has exonerated death
row prisoners, and the effect of Gov. George Ryan's mass commutation
of 171 death sentences in Illinois on the ground that he could
not be sure that innocent people were not among those condemned.
In any case, support
for the juvenile death penalty is much weaker than for capital
punishment over all; it ranged from 21 percent to 38 percent in
The Missouri Supreme
Court recently ruled that the execution of juvenile offenders
was unconstitutional. That, according to the Death Penalty Information
Center, made Missouri the 17th state to ban the practice among
the 38 that allow capital punishment. Only one juvenile offender
has been executed this year, Scott Hain in Oklahoma.
It was in 1988 that
the Supreme Court prohibited the execution of defendants who were
younger than 16 at the time of their crimes. The next year, the
court declined to extend that ban to execution of offenders under
The justices' decision
in 2002 prohibiting the execution of the mentally retarded may
provide a framework for their consideration of how juveniles should
be treated. In the case on retardation, the court looked to trends
in state legislatures, noting that 30 states prohibited the execution
of retarded people, including states without the death penalty.
The comparable number for juveniles is 29, not including the District
of Columbia and the federal government.
Fifteen of the 21
states that allow the execution of juveniles have not carried
out such an execution since the death penalty was reinstated in
1976; nine of them have no juveniles on death row.
The Malvo case may
have cast a shadow over state legislatures' consideration of the
legislators have said things like `We're not sure we want to do
away with the juvenile death penalty, because we might have a
Malvo case here,' " said Professor Streib, of Ohio Northern.
In the courts, the
trend is toward fewer death sentences for juveniles.
death sentencing rate for juvenile offenses has been declining
rapidly and is now at the lowest point in 15 years," Professor
Streib wrote in a recent report. Two juvenile offenders have been
sentenced to death in 2003.
Only three states
have carried out executions of juvenile offenders with any frequency
in recent decades. They are Texas, Virginia and Oklahoma, with
13, 3 and 2, which together account for more than 80 percent of
the 22 juvenile executions in the United States since the death
penalty was reinstated.
opponent of juvenile executions, said science, too, lent evidence
bolstering the case for abolishing them.
about brain development in adolescence," she said, "supports
the commonly held intuition that even 17-year-olds are less mature
than adults, something that the law recognizes in almost every
Richard C. Dieter,
executive director of the Death Penalty Information Center, said
American law was out of step with world opinion on the issue.
States is even more isolated on the juvenile death penalty than
on the death penalty in general," Mr. Dieter said. "We're
one of two countries that have not ratified the Convention on
the Rights of the Child," which prohibits such executions.
The other is Somalia, he said.
In sum, Attorney
General John Ashcroft's decision to send the Malvo case to Virginia
may have turned out to be counterproductive.
thing is that Attorney General Ashcroft's strategy in the case
may end up backfiring," said Jamie Orenstein, a former Justice
Department official who advised Attorney General Janet Reno on
the death penalty. "By choosing to send Malvo's case to Virginia
first precisely because of its juvenile death penalty law, he
may end up hastening its demise."