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The Supreme Court will hear oral arguments Oct. 13 in Roper v. Simmons , the latest — and possibly the last — in a series of cases challenging the constitutionality of executing those who were under 18 at the time of their crimes. In Roper, Missouri Attorney General Jeremiah “Jay” Nixon is challenging a 2003 Missouri Supreme Court ruling that struck down the death penalty for Christopher Simmons, convicted in the 1993 murder of Shirley Crook. Simmons was 17 at the time. The court ruled that because of Simmons’ age, the sentence violated the Eighth Amendment. For three decades, the leading academic and legal expert on the juvenile death penalty in America has been Victor Streib, professor at Ohio Northern University’s Pettit College of Law in Ada, Ohio. Streib, 62, has kept and updated the authoritative statistics and information that form the basis of the debate and in 1987 wrote the book Death Penalty for Juveniles . Though he has a point of view on the subject — he opposes executing juveniles — his studies are cited by both sides. In Roper v. Simmons , his work is cited in nine separate briefs including Missouri Attorney General Nixon’s defense of the juvenile death penalty, as well as in the Missouri Supreme Court ruling at issue. “Everyone on both sides of the debate about juveniles and the death penalty refers to Victor Streib’s statistics and research,” says Richard Dieter, executive director of the Death Penalty Information Center. “He has been the most reliable source of information for years.” In the following e-mail interview with Supreme Court Correspondent Tony Mauro, Streib discusses Roper and its implications for the field he has studied for so long. Streib’s comments have been edited for space. When did you begin studying the juvenile death penalty, and why? I began teaching in 1971, and my specific research interest was violent crime, particularly homicide. Because I had worked in the juvenile justice system [prosecution, defense counsel, and juvenile corrections], I homed in on juvenile homicide. My overall goal then, as now, was to find means through law and legal systems to reduce juvenile homicide. The sentencing alternative often touted for reducing homicide generally was, and still is, the death penalty, so sometime in the mid-1970s I began to dig into this topic for juveniles. I guess I was the first to discover and write about the death penalty being applied in juvenile homicide cases. My interest is in reducing juvenile homicide, so I look for a deterrent or incapacitating effect from punishments and am not much interested in retribution or the desire to punish offenders harshly. After three decades of research into the juvenile death penalty, I have concluded that it is less effective than long-term imprisonment at reducing juvenile homicide. The juvenile death penalty does not reduce juvenile homicide and should be discarded. It is enormously expensive and can be seen as barbaric and inconsistent with domestic and international law. How do you balance your advocacy with your information-gathering to remain a credible source of information . . . [for] both sides in the debate? I see the primary role of university professors as researching important topics and publishing the resulting information and facts, warts and all, for society to absorb and debate. In this role, I lay out everything I have learned, regardless of whether it helps or hurts either side of the debate. As a result, my research findings have been cited by advocates on all sides of this issue and by “both wings” of the U.S. Supreme Court. I take particular pride in this, because I think that we have an over-abundance of advocates and spokespersons on all sides of this issue and, typically, a dearth of factual information. Of course, I also have represented many death row juvenile offenders before the U.S. Supreme Court and several state supreme courts. When I serve as an attorney representing a juvenile offender on death row, I take on the advocate’s role 100 percent. However, I take great pains to keep separate and distinct my roles as neutral researcher and as attorney advocate. Both provide extremely important services to society, but they should be kept distinct and separate. What is your view of Roper v. Simmons? Is this the case that will definitively resolve the issue? Roper v. Simmons may well be the grand finale for the juvenile death penalty, but it is only the latest of a steady stream of such cases during the past 20-plus years. In 1988, the Court drew the minimum age at 16 in Thompson v. Oklahoma. However, in several cases since then, the Court has steadfastly refused to raise that minimum age to 18. If the Supreme Court in Roper addresses the constitutional issue concerning the juvenile death penalty, I am confident that the Court will declare it to be cruel and unusual under the Eighth Amendment and draw the minimum age line at age 18. The Court is pretty much compelled to do this, given its 2002 ruling that the death penalty is unconstitutional for the mentally retarded, using reasoning identical to that in juvenile death penalty cases. Is it possible the issue will not be finally resolved in this case? There is another issue in Roper v. Simmons that could sidetrack the juvenile death penalty issue yet again. The Missouri Supreme Court, in deciding this case below, essentially rejected the controlling U.S. Supreme Court case law on the juvenile death penalty and instead declared a new, evolved federal constitutional principle. The U.S. Supreme Court, therefore, is also looking at whether a state supreme court should be doing this. It is certainly possible, although unlikely, that Roper v. Simmons will be decided on this “other issue” and never get to the juvenile death penalty issue directly. Nonetheless, the juvenile death penalty will soon be found to be unconstitutional by the U.S. Supreme Court, either in Roper v. Simmons or in the next case coming before the Court. It is a question of when, not whether. How important do you think the international consensus on this issue will be, compared to the trend among the states? The U.S. Supreme Court consistently applies the same step-by-step analysis in death penalty cases seeking to exclude a distinct category of offenders. This Court’s analysis looks first and foremost at whether the individual states have precluded the death penalty for these categories, using that as a key indicator of whether the standard for what is considered “cruel and unusual” has now evolved to a new level. Therefore, the steady progression of states prohibiting the juvenile death penalty will be the most important factor for the Court. Second will be the willingness of juries to actually sentence juveniles to death, and this has dwindled to only one or two a year. After these two primary indicators, the Court looks at a fairly long list of other indicators, all providing insight as to any “evolved standard” in death penalty cases. One of these other indicators is that the juvenile death penalty is prohibited by essentially every country in the world except for the United States. Some may argue that the positions of other countries are not relevant to determining American constitutional law, but it is pretty hard to ignore our being the odd man out on this issue. Because of this worldwide rejection of the juvenile death penalty, it now violates international law as well, putting the U.S. in the position of an outlaw nation on this issue. The Court in Roper v. Simmons certainly will not ignore these embarrassing facts. What is the trend among the states, and has it reached the “tipping point” where it will convince the Court to put an end to the juvenile death penalty? The trend is steady and moving in only one direction for the past quarter-century. No state has lowered its minimum age from 18, and many have raised their minimum ages to 18. The following jurisdictions have raised or established the minimum age to 18 since 1980: Kentucky, Ohio, Nebraska, Colorado, Oregon, New Jersey, federal, Kansas, New York, Montana, Indiana, South Dakota, and Wyoming. In 2004, of the 39 death penalty jurisdictions [38 states plus federal], 20 now have a minimum age of 18. Of the total of 52 jurisdictions [50 states plus D.C. and federal], 33 of the 52 either prohibit the juvenile death penalty or prohibit all death penalties. This is a higher portion than had prohibited the death penalty for the mentally retarded when the Court found that to be unconstitutional. These facts will be the most important element the Court will consider in Roper v. Simmons. What about research on adolescent brains and judgment? What does it tell us, and how do you think it will influence the Court? The Court has repeatedly recognized that juveniles are not just short adults, but that they are impulsive, immature, shortsighted, and lacking in judgment. This can be verified by any parent of teenagers or any high school teacher. Lack of mature judgment and impulse control is one of the reasons why we don’t give teenagers legal rights to vote, drink, sign contracts, get married, etc. The Court has repeatedly upheld these denials of rights to teenagers. During the past few years, the medical research on the organic development of the brain has provided clearer, scientific explanations as to why teenagers are as they are. This research has found that the brain continues to grow and develop well into the upper teens and often into the early twenties, particularly for males. The last part of the brain to fully develop are the frontal lobes, particularly the prefrontal cortex, precisely the part of the brain that provides control of impulses, ability to evaluate risks and future consequences, and capacity for moral judgment. Just as a short kid can’t reach the highest shelf because they are not fully grown, a teenager’s lack of physical brain development keeps them from reaching the highest level of adult behavior. This new scientific brain research can be expected simply to reinforce what the Court has already held repeatedly as to teenage behavior. It may be more reassuring to now have a scientific explanation for what we already have observed, but it won’t change the Court’s opinion about this. What is the future of the juvenile death penalty regardless of the decision in Roper v. Simmons? The juvenile death penalty is fast disappearing. It has already been outlawed everywhere in the world except in the U.S., and only a few of our states continue to apply it at all. State legislatures are amending their death penalty statutes to put in minimum ages of 18, and state courts are highly skeptical of executing juvenile offenders. Local juries are saying no to the juvenile death penalty, and prosecutors are reluctant to even consider it. The rejection of the juvenile death penalty even for 17-year-old Lee Malvo in the D.C. sniper case is an excellent case-in-point. Finally, the U.S. Supreme Court is poised to declare the entire practice unconstitutional in Roper v. Simmons. It appears to be a race to see how it is abolished, not whether it will be abolished. You have studied and litigated the juvenile death penalty for the past 30 years. What will you do if you have worked your way out of a job? I certainly hope that I have worked my way out of a job, but there is still so much more to be done. The alternative to the juvenile death penalty typically is life in prison without parole, imposed on kids as young as ten and twelve. Surely this is a policy worth examining and exposing to the light of public scrutiny. Moreover, my work encompasses how we handle the entire range of juvenile homicides — from kids playing with guns to school shootings to gang-bangers. Whatever happens to the juvenile death penalty, the horror and tragedy of kids who kill will still be with us.

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