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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 has agreed to re-examine the issue. The justices granted review in Roper v. Simmons, No. 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. End not in sight But that conclusion is not certain, and death penalty opponents cautioned that the high court’s intervention in the Missouri case 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. 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. 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 the four dissenting justices-or four justices on the pro-death penalty side-granted review in Simmons knowing they now have a fifth justice on their side. The usual swing votes on the high court-those of justices Sandra Day O’Connor and Anthony Kennedy-are the ones 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.

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