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CounterPunch
February
10, 2003
The Politics
of the Death Penalty
Did the Beltway Sniper Case
Cause the Supreme Court to Cower?
by ELAINE CASSEL
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: cassel@counterpunch.org.
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