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In the fall of 2002, innocent people were picked off by gun fire in Virginia, Maryland, and the District of Columbia. No place was safe; the killings were seemingly random; citizens were prisoners in their own homes. When the murderers were finally captured, it turned out that one of them was 17 years old. Virginia was awarded the first trials for John Allen Muhammad and his teenaged accomplice, Lee Boyd Malvo. Prosecutors sought the death penalty for both killers. Muhammad and Malvo were found guilty, yet � despite the magnitude and vileness of their crimes � only Muhammad was sentenced to die. Though many believe that capital punishment is the only appropriate penalty for Malvo, the actual outcome of his case does destroy one argument: that this country needs a bright-line rule prohibiting the execution of anyone for crimes committed under the age of 18. Jurors are fully capable of taking into account possible mitigating factors � level of maturity, comprehension of consequences, and ability to act with sufficient culpability � in deciding whether to execute teenage killers tried as adults. Which criminals deserve capital punishment should depend on an individualized consideration of the facts and circumstances of the particular cases. The Missouri Supreme Court’s conclusion that capital punishment for all those under 18 is unconstitutional was simply wrong. And the U.S. Supreme Court should make that clear when it decides the appeal of Roper v. Simmons. THEY ARE NOT CHILDREN I will not, in this discussion, use the term “juveniles” to refer to the criminals at issue in Roper v. Simmons. To do so is to pretend that there is no meaningful difference between a 10-year-old, a 13-year-old, and a 17-year-old just days away from his or her 18th birthday. It is wrong to insist that the Constitution requires us to treat them all the same for purposes of the death penalty. It is wrong to engage in an abstract debate about the diminished capacity of “juveniles” while refusing to confront the reality of the crimes that have been plotted, committed, and covered up by 16- and 17-year-old killers. It obfuscates the difference between young children we all agree ought not be executed and those on the very edge of statutory adulthood. Christopher Simmons and his amici rely on such obfuscation to contend that no one under 18 should ever be executed for any crime. Their position ignores the reality of how mature, capable, and cold some 16- and 17-year-olds can be. The U.S. Supreme Court recognized this not long ago. In Stanford v. Kentucky (1989), the Court held that imposing capital punishment on 16- and 17-year-olds is constitutional. The challengers failed to establish that there existed a national consensus against the death penalty for people of this age. Nothing in Stanford, in the Court’s death penalty jurisprudence since, or in the facts supports the Missouri court’s contrary conclusion. As Justice Antonin Scalia explained in Stanford, the U.S. Supreme Court’s analysis here must be governed by two overarching considerations: the text of the Eighth Amendment � which bars cruel and unusual punishment � and the deference owed “to the decisions of the state legislatures under our federal system.” Emboldened by the U.S. Supreme Court’s 2002 decision in Atkins v. Virginia banning execution of the mentally retarded, the Missouri Supreme Court decided that the high court would today hold that executions for offenses committed at the age of 16 or 17 are prohibited by the Eighth Amendment. But nothing in Atkins supports withdrawing from the states and their citizens the power to decide whether a 16- or 17-year-old who is not mentally retarded ought to be executed. The power to engage in individualized consideration � consideration that is necessarily more accurate and reliable than broad generalizations about large groups of human beings � properly lies with state legislatures, local judges, and local juries. FULLY CAPABLE KILLERS In Atkins, the Supreme Court relied upon the definition of diminished capacity that attends the term “mental retardation.” Its decision to exempt mentally retarded murderers from the death penalty rested, at bottom, on a judgment that such offenders are, by virtue of their limited cognitive abilities, less blameworthy. That clinical diagnosis simply does not reach 16- and 17-year-olds. The vast majority of 16- and 17-year-olds know how wrong it is to kill another human being. They are fully capable of developing intelligent and frightful schemes for getting even with people who have made them angry. They can control themselves, even in the face of injustice or cruelty, and reject the option of responding with horrible violence. Also, the vast majority of 16- and 17-year-olds are as articulate, able to reason, and persuasive as they will ever be as adults. The simple fact is that the conditions that attend mental retardation cannot be attributed to every individual of a particular age. Nor does turning 18 flip a switch that suddenly renders an individual more culpable than he or she was the day before. The absolute prohibition sought by the respondents in Simmons just doesn’t make any sense. My primary concern is that capital punishment remain an option when a cold-blooded 16-year-old carries out a grisly gang-ordered murder. The 16-year-old who decides to shoot a complete stranger on the street as a part of a ritual gang initiation should have to make that choice knowing that his community may put him to death. He should not be able to kill secure in the knowledge that he is shielded from the ultimate punishment simply because he is some number of days away from his 18th birthday. The death penalty should be available in that case until the people of Virginia or any other state, through their elected representatives, decide that execution is no longer a proper punishment. NO NATIONAL CONSENSUS Constitutional determinations of what constitutes cruel and unusual punishment are dependent upon the “evolving standards of decency” analysis adopted by the Supreme Court in Trop v. Dulles (1958). In both Stanford and Atkins, the Court agreed that in that analysis, “the clearest and most reliable objective evidence of contemporary values is the legislation enacted by the country’s legislatures.” Such deference to the reasonable choices of the states ought to be the rule unless and until the unconstitutionality of that choice is beyond serious question. Indeed, in Penry v. Lynaugh (1989), two affirmative legislative acts over the span of three years was not enough to establish the national consensus necessary to declare executions of the mentally retarded as cruel and unusual. In 2002, the Supreme Court relied in Atkins upon the affirmative action of the 14 states since Penry to prohibit the execution of the mentally retarded. The Court emphasized that “it is not so much the number of these States that is significant, but the consistency of the direction of change,” noting in particular “the complete absence of States passing legislation reinstating the power to conduct such executions.” The same evidence simply does not exist on the question of executing 16- and 17-year-olds. Since the Court’s decision in Stanford, only four state legislatures have acted to increase the age of killers subject to the death penalty. In addition, state legislatures can hardly be said to be moving with consistency of direction against the execution of 16- and 17-year-olds. The clearest example of movement toward, rather than away from, permitting their execution occurred in Virginia. In 2000, Virginia’s legislature expressly amended its law to allow execution of violent criminals who were 16 years old or older at the time of their crimes. An additional consideration in determining national consensus is the frequency with which the punishment is imposed. Thankfully, it is relatively rare that 16- and 17-year-olds commit vile murders. It would be ironic indeed if that fortunate fact rendered the death penalty unavailable as a matter of constitutional law. The amicus brief filed by Alabama, Delaware, Oklahoma, Texas, Utah, and Virginia describes just how sinister and sophisticated some young murderers have been. There is no basis for treating them differently from their 18-year-old friends. Jerry Kilgore is the attorney general of Virginia. He joined an amicus brief supporting the state of Missouri before the Supreme Court in Roper v. Simmons .

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