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WASHINGTON — Fifteen years after ruling that states could execute murderers as young as 16 or 17 years old, the U.S. Supreme Court on Monday agreed to re-examine the issue. The justices granted review in Roper v. Simmons, 03-633, in which the Missouri Supreme Court set aside the death sentence of Christopher Simmons, who was 17 when he murdered a woman in 1993. The Missouri court had upheld the death sentence in 1997, but reversed itself in the wake of the U.S. Supreme Court’s 2002 ruling in Atkins v. Virginia barring the execution of the mentally retarded. Because of that ruling, the Missouri justices concluded, the U.S. Supreme Court now “would hold” that executing juveniles violated the Eighth Amendment’s protection against cruel and unusual punishment. But that conclusion is not certain, and death penalty opponents cautioned that the high court’s intervention in the Missouri case on Monday might not spell the end of the juvenile death penalty. It is possible the Supreme Court could use the case to underline that its views about executing the mentally retarded cannot be automatically transferred to other contexts. “No one’s jumping for joy, because it is so complex,” said Georgetown University Law Center professor Wallace Mlyniec, co-chair of the American Bar Association’s Juvenile Justice Committee. “You can’t assume how it is going to come out.” In 1989, the justices ruled in Stanford v. Kentucky that executing those between the ages of 16 and 18 is constitutional. When the defendant in that case, Nigel Stanford, filed a habeas petition in 2002 asking the justices to reconsider in the wake of Atkins, the court refused — but four justices dissented. “The practice of executing such offenders is a relic of the past and is inconsistent with evolving standards of decency in a civilized society,” wrote Justice John Paul Stevens, joined by Justices David Souter, Ruth Bader Ginsburg and Stephen Breyer. Although it takes five justices to grant a habeas petition, it takes only four to grant review. So it is possible to imagine scenarios whereby those four — or four justices on the pro-death penalty side, by the same token — granted review in Simmons knowing they now have a fifth justice on their side. The usual swing votes on the high court — Justices Sandra Day O’Connor and Anthony Kennedy — are the justices most in play in the case at hand. A key factor in the outcome will be evidence about whether state law and public sentiment are trending away or toward the retention of the juvenile death penalty. Currently, 21 states allow the execution of juveniles. Death penalty opponents will argue that only two juvenile defendants nationwide were sentenced to death last year, and that since 1989 six states have banned executing juveniles. In December, Democratic Kentucky Gov. Paul Patton commuted the sentence of Stanford. With the high court’s renewed interest in international human rights developments, it will also be noted that Iran last year banned the execution of juveniles. “The time is right to end this part of the death penalty,” said Richard Dieter of the Death Penalty Information Center. Also on Monday, the high court decided an important Miranda case in favor of criminal defendants. Ruling unanimously in Fellers v. United States, 02-6320, the court said Lincoln, Neb., police violated the Sixth Amendment rights of John Fellers when they elicited information from him while arresting him at his home after an indictment on drug charges. Officers did not advise him of his Miranda rights until taking him to jail, where they questioned him further. The Eighth Circuit U.S. Court of Appeals ruled that the initial contact at Fellers’ home was not a violation of his rights because it was not an interrogation. Justice Sandra Day O’Connor, writing for the court, said, “There is no question that the officers in this case deliberately elicited information” from Fellers. But the court remanded the case for further consideration of the admissibility of the second interrogation. The Fellers ruling was the first of four this term involving Miranda rights. Tony Mauro is Supreme Court correspondent for American Lawyer Media and The Recorder’s Washington, D.C., affiliate Legal Times.

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