February 9, 2004
By James Alan Fox
Christopher Simmons was 17 years old when he robbed a woman, tied her up and threw her off a railroad bridge in 1993. Convicted of murder, Simmons spent a decade on death row. But last year, the Missouri Supreme Court changed his death sentence to life in prison without parole.
Two weeks ago, following an appeal by Missouri's attorney general of the state court ruling, the U.S. Supreme Court agreed to reconsider its own 1989 decision that executing those who commit crimes at ages 16 and 17 is not "cruel and unusual punishment."
During the past two decades, 22 convicts have been executed in the USA for their youthful crimes. Since 1990, only seven other countries have employed the death penalty for juvenile offenses: Congo, Iran, Nigeria, Saudi Arabia, Pakistan, China and Yemen. The latter three recently have abolished the practice.
With seven out of 10 Americans opposed to capital punishment for youthful offenders, according to a May 2002 Gallup Poll, it is now time to follow the example set by almost all other countries.
The court's decision to take up the matter comes as popular support for all capital punishment has softened from its mid-1990s peak. It also comes on the heels of a 2002 decision in which the U.S. Supreme Court reversed itself on the constitutionality of executing mentally retarded convicts. In that arena, shifting public opinion impressed the justices: "It is fair to say," wrote Justice John Paul Stevens for the majority, "that a national consensus has developed against" executing the mentally retarded.
Lack adult reasoning
While juveniles do not belong in the same category of reasoning as the mentally deficient, they lack maturity and so should not be held to the same accountability standards as adults. Teenagers may look like, act like and even shoot like adults, but they think like children. Recent neurological studies at Harvard and UCLA medical schools have determined that the frontal lobe portion of the brain, which governs abilities for decision-making and considering long-term consequences, does not fully develop until about age 21.
The death penalty's deterrent effect, if any, surely vanishes for adolescents, who tend not to consider consequences. Immediate rewards and punishments — peers' praise or rejection, for example — are far more critical than what the justice system might one day do to them.
Teens are risk-takers. Much of their reckless behavior — poor driving, drug use, unprotected sex — carries a potential "death sentence," yet they play the odds. It is unreasonable to expect that capital punishment will make them think twice, when so often they don't even think once.
Some insist there are juvenile "superpredators" who are so depraved that the ultimate penalty is warranted. Yet most of the 22 recent juvenile executions were of youths involved in shootings during robberies of store clerks, gas station attendants and disabled motorists — cases where youthful impulsiveness prompted perpetrators to be quick on the trigger.
Since the 1976 restoration of the death penalty, more than 1,000 16- and 17-year-olds have been arrested for robbery-murder in the seven states that have executed offenders for such crimes. What was so special about those executed? The offenders were poor and saddled with bad legal representation.
That a Virginia jury recently rejected the death penalty for 17-year-old serial sniper Lee Malvo certainly calls into question the fairness of the death-penalty-selection process. In any event, why maintain such a questionable practice when it affects so small a percentage of cases?
While they're at it, the justices should not stop at 16- and 17-year-olds, but examine the appropriateness of the death penalty for all offenders under age 21, a dividing line far more consistent with scientific knowledge about responsibility than the traditional age 18.
Twenty years ago, Congress increased the drinking age to 21 nationwide, recognizing that adolescents are too immature to make sound decisions about alcohol consumption. Why not use the same standard with capital punishment? I say: "If they're too young to buy, then they're too young to die."
James Alan Fox is the Lipman Family Professor of Criminal Justice at Northeastern University in Boston.