Despite a judiciary increasingly dominated by conservative appointees, the federal courts have shown a heartening willingness to rein in the death penalty. In recent years, they have limited who is eligible and have placed other restrictions on states' arbitrary conduct. Two years ago, the U.S. Supreme Court, by a vote of 6 to 3, halted the practice of executing mentally retarded prisoners, declaring it unconstitutional in Atkins v. Virginia.
Later this year, the Court will hear arguments in Roper v. Simmons, a watershed case involving Christopher Simmons, a young man who had lived on Missouri's death row for close to a decade after being convicted of a particularly gruesome murder committed when he was 17 years old. But in 2003, the Missouri Supreme Court ruled that the juvenile death penalty violated the Eighth Amendment's prohibition on cruel and unusual punishment, and, when the state appealed, the U.S. Supreme Court agreed to take the case. Since then, juvenile executions across the country have been put on hold.
Most experts believe it will be impossible for the Court to avoid a decision barring the execution of juveniles when the justices make their ruling public sometime in 2005. "All the measures are exceeded," says Adam Ortiz, who works on the issue for the American Bar Association. Ortiz is referring to the fact that the same "measures" the Court cited in barring execution of the mentally retarded -- an inability to fully interpret events and a lack of complete moral culpability, for example -- hold true for juveniles in light of the new scientific understanding of the adolescent brain.
Together, these developments represent the biggest shift away from capital punishment since the practice was briefly abolished in this country between 1972 and 1976. "This is the cutting edge of the death-penalty-reform movement," says Richard Dieter, executive director of the Washington-based Death Penalty Information Center
It is also a remarkable turnaround from the prevailing view on the Supreme Court in the late 1980s. In two seminal cases -- Thompson v. Oklahoma (1988) and Stanford v. Kentucky (1989) -- the justices upheld the juvenile death penalty but left open the door to re-examine it if community norms, or "standards of decency," changed in the years to come.
Since then, the standards of decency have indeed changed. A moral consensus is emerging that holds out room for the eventual rehabilitation of teenage criminals, even those convicted of particularly brutal murders, or at the very least one that judges the actions of immature teenagers by a slightly different moral calculator than that used for mature adults; that recognizes new scientific evidence on how the adolescent brain functions; and that seeks to understand, if not excuse, why some adolescents are prone to acts of extreme violence. Perhaps in no other area of the criminal-justice system has there been such a dramatic shift of moral sensibilities in so short a time frame. Importantly, this view is also informed by a troubling body of evidence -- gathered by experts like Ohio Northern University law professor Victor Streib -- indicating that far from being blind, justice is capricious: Most teenagers sent to death row are poor, black, and likely to have been convicted of killing whites.
Because of the above factors, Americans increasingly favor prison terms, including life without parole, over death for juveniles convicted of capital murder. Last year, only two people in the United States were sent to death row for crimes committed when they were minors, down from seven in 2000. Though the number of Americans executed for crimes committed when they were minors has always been tiny compared to the number of adults executed, the punishment finally "seems to be out of style and it seems to be disappearing," says Streib. "It's like an endangered species."
Today, 20 states permit the execution of someone convicted of a crime committed when he or she was younger than 18. Of these, the Death Penalty Information Center estimates that 12 currently have juvenile offenders on death row, all of them in the South except Arizona, Nevada, and Pennsylvania; Texas leads the field with 28 people awaiting execution for crimes committed when they were 17 years old. But a mere seven states have actually carried out such an execution since 1976. Florida, for example, hasn't put a juvenile offender to death since 1954; Arizona since 1934; and Alabama, which has 14 juvenile offenders on its death row and which allows teenagers as young as 16 to be executed, since 1961. In fact, 89 percent of Americans live in states that have not executed a juvenile in more than a decade, reflecting the fact that prosecutors are apparently reluctant to seek the death penalty against juveniles even in states where they can.
Not surprisingly, the majority of the juvenile executions that have occurred have been in the single state of Texas (eight out of 13 since 1999), many of them resulting from convictions in the infamous "convict-'em-and-execute-'em" Harris County.
Yet when Texas geared up two years ago to execute Napoleon Beazley, an African American convicted of killing a white man during a botched carjacking in 1994 when the former was 17 years old, 18 state legislators spoke out against the execution, and Judge Cynthia Kent, who had presided over Beazley's trial, wrote a letter to Governor Rick Perry urging him to commute the sentence. Professional organizations such as the American Bar Association and the American Psychiatric Association called for a halt to such killings, pointing out that only four countries worldwide -- Congo, Iran, Pakistan, and the United States -- acknowledge having executed juveniles in the years since 2000.
Ultimately unsuccessful, the campaign gathered steam even after Beazley was put to death by lethal injection. Newspapers across the country and human-rights organizations around the world declared his execution a travesty. An array of Nobel Peace Prize winners -- including Jody Williams, Desmond Tutu, F.W. de Klerk, and the Dalai Lama -- signed an open letter in Paris urging the United States to end these judicial killings. And back home in Texas, widespread opprobrium moved state senators to vote to ban the juvenile death penalty. The House failed to follow suit only after the governor intervened in support of preserving such executions.
Perry's action, however, did not dampen the national sentiment against the juvenile death penalty. In the years prior to Beazley's execution, Montana and Indiana had passed laws banning juvenile executions. Since Perry's intervention, South Dakota and Wyoming have also barred the punishment. And just before Christmas of last year, defenders of the juvenile death penalty received yet another setback, this time in Virginia. In one of the highest-profile capital-murder cases of recent times, a jury recommended not to impose the death penalty on Lee Boyd Malvo, the teenage triggerman in the notorious Washington, D.C., sniper killings. What made the decision all the more improbable was the fact that Attorney General John Ashcroft had gone out of his way to secure a trial in Virginia precisely because Virginia juries were more likely to vote for death in cases where the defendant was a minor at the time the crimes occurred. Weeks earlier, another Virginia jury had elected to sentence adult sniper John Allen Muhammad to death for the killing spree.
The Virginia verdicts appear to reflect a broader view borne out by national opinion polls and studies of jurors in other capital cases: While a majority of Americans continue to support capital punishment for adults, a broad-based consensus is developing against the practice of executing juveniles.
Those few who defend the practice increasingly resort to a language of unilateralism, displaying paranoid hostility to perceived international encroachments on U.S sovereignty. In September 2001, for example, during Beazley's appeals process, the state of Texas filed a response in which it claimed that a move to bar juvenile executions would amount to bowing to "economic extortion from some European council," and that it would represent "social engineering by those who cannot achieve their neo-socialist designs on government through the democratic processes established in our state and federal constitutions."
Other proponents of juvenile capital punishment seem to long for a simpler world easily divided into Manichaean goods and evils. "If they're old enough to serve in the armed forces, they're old enough to be held accountable for capital crimes," says 48-year-old Austin attorney and former Marine William "Rusty" Hubbarth, of the Texas-based Justice For All organization. "If the government feels a 17-year-old is mature enough to be trained to be a professional killer, they're old enough to know the difference between right and wrong." Hubbarth, who opaquely states that his own family was the subject of a violent crime and who used to write case summaries for the Texas Board of Pardons and Paroles during presentations arguing for clemency for death-row inmates, adds, "Some of these people don't deserve to be breathing the same air as me."
Yet more and more, voices like Hubbarth's are the minority. Recent research by criminologists from Northeastern University's Capital Jury Project and the University of Delaware found that barely 18 percent of juries recommended the death penalty when a capital defendant was younger than 18 at the time of his or her crime. When the defendant was 18, only 34 percent of juries imposed a death sentence. But when a defendant was older than 18, between 55 percent and 65 percent of juries handed down death sentences. Reflecting a similar sensibility, a 2001 Texas poll found that only 34 percent of Lone Star State residents supported the juvenile death penalty, despite Texas' status as the nation's execution epicenter. And in 2002, a national Gallup Poll estimated that barely a quarter of all Americans favored the penalty for minors.
To be sure, strong public unease with the juvenile death penalty has to do with a cultural reluctance to sanction the killing of children that has operated throughout American history. But more recent shifts in public opinion may be informed by advances in brain-imaging techniques and scientists' understanding of how the adolescent brain works.
In the 1960s, Harvard neurologist Paul Ivan Yakovlev began using a new staining technique on a collection of more than 1,500 brains from deceased people of various ages. His aim was to study how the brain continues to acquire fatty insulation, or myelin, as it ages through childhood and adolescence. The insulation facilitates the brain's ability to transmit information; to understand the past, present, and future; and to interpret its surroundings. Absent such insulation, the brain is restricted in how well it can interpret complex data and self-censor basic impulses -- including violent ones. Yakovlev's findings, contradicting earlier theories, indicated that brain structures continue to evolve well beyond childhood.
"We used to think brain development was complete by 3 or 4 years old," explains David Fassler, trustee-at-large of the American Psychiatric Association and clinical professor of psychiatry at the University of Vermont. "We now know it continues through adolescence, and, in some areas, even into early adulthood."
With more recent advances in magnetic resonance imaging, brain scans on living subjects have become far more sophisticated, allowing neuroscientists to develop detailed maps of how the brain changes over time, which parts of the brain change first, and which parts mature only in early adulthood.
"Until you are 18, the brain is changing," explains Ruben Gur, a neuropsychologist at the University of Pennsylvania Medical School. "And those parts of the brain that come on board last, that myelinate last, are exactly those parts of the brain that do the functions considered to be related to criminal culpability. The last parts of the brain to become myelinated are the frontal lobes and cortexes -- the thinking parts of the brain."
For the vast majority of children, a good social network, parental advice, and the presence of teachers, mentors, and minders serve as a sort of societal substitute for the functions of the fully developed frontal cortex. In some children, however, that substitute is so absent or twisted -- through neglect or abuse -- that the child has no inhibitors to extreme acts of violence. Overwhelmingly, say neuropsychologists, these are the young people who are most at risk of ending up on death row. That doesn't mean that such children shouldn't be punished -- and, when necessary, incarcerated for long periods -- in order to protect society from their violent actions. What it does mean, however, is that complicating factors may exist that should be given serious weight during the sentencing phase of any capital case involving a juvenile.
Whether because of new scientific understandings or because of a greater communal sensitivity to the challenges faced by abused, disturbed young people, someday soon the juvenile death penalty may be a sorrowful anachronism, as antithetical to American values of fairness and justice as the burning of witches seems today.
Hours before Napoleon Beazley died in Texas' execution chamber, he released his final statement. "The act I committed to put me here was not just heinous, it was senseless," the condemned man wrote, his appeals all used up, his time on earth galloping away. "But the person that committed that act is no longer here -- I am. I'm not going to struggle physically against any restraints. I'm not going to shout, use profanity or make idle threats. Understand though that I'm not only upset, but I'm saddened by what is happening here tonight. I'm not only saddened, but disappointed that a system that is supposed to protect and uphold what is just and right can be so much like me when I made the same shameful mistake."
When it comes to the death penalty, America has shown a peculiar propensity over the years for perpetuating the "shameful mistake." When the Supreme Court hands down its ruling in the Simmons case, hopefully at least one avenue for such mistakes will be permanently closed down. And once people see that justice can still be served without executing young criminals, perhaps they will be more inclined to believe that the justice system would still function were the death penalty as a whole consigned to history.