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The Supreme Court on Tuesday ruled 5-4 that executing juvenile offenders is no longer constitutional, a dramatic reversal of precedent that laid bare angry divisions among the justices. Citing moral imperatives as well as a growing consensus in the United States and abroad against executing those who were under 18 when they committed murder, Justice Anthony Kennedy announced the long-awaited ruling in Roper v. Simmons from the bench. “From a moral standpoint, it would be misguided to equate the failings of a minor with those of an adult, for a greater possibility exists that a minor’s character deficiencies will be reformed,” Kennedy said. Noting that even the handful of nations that have executed juveniles in recent years have stopped doing so, Kennedy said it was relevant, if not controlling, to recognize that the United States “now stands alone in a world that has turned its face against the juvenile death penalty.” Kennedy said it was proper for the Court to refer to international legal trends as “respected and significant confirmation” of the Court’s judgments. Immediately after Kennedy spoke, Justice Antonin Scalia read from his scathing dissent, attacking the majority for positioning itself as the “sole arbiter of our nation’s moral standards.” And in the fullest exposition of deep disagreements over the value of foreign law in the Court’s jurisprudence, Scalia upbraided the majority for selectively invoking the international consensus against executing juveniles while ignoring it in other contexts, such as abortion rights. “To invoke alien law when it agrees with one’s thinking and ignore it otherwise is not reasoned decision making, but sophistry,” Scalia said. Scalia is the most outspoken opponent of invoking international law and has recently become more visible on the issue. He relented in his usual opposition toward broadcast coverage of his remarks on Jan. 13 when he allowed C-SPAN to air a debate between him and Justice Stephen Breyer on the issue at American University. Kennedy sat stone-faced as Scalia scoffed at his decision in one of the most vituperative dissents in years. Scalia’s dissent was joined by Chief Justice William Rehnquist and Clarence Thomas. Justice Sandra Day O’Connor wrote a separate dissent, which also came under attack from Scalia. “This is a great day for justice,” said former U.S. Sen. Joseph Tydings (D-Md.), a partner at Dickstein Shapiro Morin & Oshinsky, who wrote a brief in the case for the Coalition for Juvenile Justice, a group of juvenile justice experts. American Bar Association President Robert Grey Jr. also praised the Court for recognizing that “juveniles are different, and that those differences make the death penalty a cruel and unusual punishment for them.” Kennedy’s extensive endorsement of the notion that teenagers are less culpable for their actions than adults could also turn out to be a valuable tool in seeking reduced sentences for juveniles in noncapital cases. “This could have an impact on sentencing because the Court has accepted the idea that the degree of responsibility is less for people, like teenagers, whose brains have not fully developed,” said Joseph McLaughlin, a partner at Heller Ehrman White & McAuliffe in New York, who wrote a brief in the case for the American Medical Association and other medical groups. McLaughlin also said that Tuesday’s ruling could give momentum to efforts to “erode the death penalty segment by segment.” For example, he said, similar arguments could be used to attack the imposition of the death penalty on those who were addicted to drugs when they committed their crimes. “It’s not a stretch,” he noted. The Roper decision marks the second time in recent years that the Court has walled off an entire category of defendants from eligibility for the death penalty. In the 2002 Atkins v. Virginia decision, the Court said that executing the mentally retarded violated the Eighth Amendment. Kennedy invoked the Atkins decision repeatedly on Tuesday and used similar reasoning about culpability and consensus in striking down the juvenile death penalty. More than 70 inmates on death row nationwide will be helped by the ruling. The Court in 1988 ruled that executing those who were under 16 when they committed their crimes violated the Eighth Amendment’s bar against “cruel and unusual punishments.” But the following year, in Stanford v. Kentucky, the Court allowed the death penalty for those between the ages of 16 and 18. Since then, five states that allowed juvenile executions have banned them, leaving 20 that still have a juvenile death penalty on the books. In the last 10 years, Kennedy noted, only three states have executed juveniles, and the death penalty was commuted for Kevin Stanford, the defendant in the 1989 case. The “consistency of direction” of the trend away from juvenile executions is significant, Kennedy said. Kennedy also invoked scientific research about teenage development as well as information that “any parent knows” to assert that juvenile offenders are less mature than adults and are more susceptible to peer pressure. “These differences render suspect any conclusion that a juvenile falls among the worst offenders,” Kennedy wrote. In the case before the Court, Christopher Simmons was a 17-year-old high school junior in Fenton, Mo., 12 years ago when he and two friends robbed a neighbor, tied her up, and threw her from a bridge to drown. Simmons was tried as an adult, convicted, and sentenced to death. The Missouri Supreme Court overturned his sentence in spite of the Stanford precedent, prompting an appeal by the state to the U.S. Supreme Court. Missouri Attorney General Jay Nixon, who defended the state law at issue before the Court, said Tuesday he respected the ruling, which affects only Simmons in his state. “There has never been any question about his guilt in the murder of Shirley Crook, and this decision confirms that he will spend the rest of his life in prison,” said Nixon. Kennedy’s opinion, with its reference to moral values and social science research, is also likely to deepen conservatives’ anger toward the justice, named to the high court in 1988 by President Ronald Reagan. In spite of his conservative credentials, Kennedy has been a key factor in shaping some of the Court’s most liberal recent decisions, including Planned Parenthood v. Casey, which upheld the Roe v. Wade right to abortions, and the 2003 decision in Lawrence v. Texas, which struck down anti-sodomy laws and also reversed a recent Court precedent. “Justice Kennedy is the gift that keeps giving to our liberal friends,” said former Reagan Justice Department official Mark Levin, the author of a new book criticizing the Court. “He proves with each passing year why he was President Reagan’s third choice for the Bork seat.” O’Connor wrote a separate dissent in the case Tuesday, agreeing with Scalia that she “would not substitute our judgment about the moral propriety of capital punishment for 17-year-old murderers for the judgment of the nation’s legislatures.” But she parted company with Scalia on the irrelevance of foreign law in Court decisions. “The existence of an international consensus . . . can serve to confirm the reasonableness of a consonant and genuine American consensus,” O’Connor wrote. In a footnote, Scalia responded to O’Connor: “Either America’s principles are its own, or they follow the world; one cannot have it both ways.” Scalia reserved some of his scorn for the Missouri Supreme Court’s “flagrant disregard” of the high court’s Stanford v. Kentucky precedent when it ruled in favor of Simmons in 2003. By affirming the Missouri decision without admonishing it for disregarding precedent, Scalia said, the majority eroded its own authority. “This is no way to run a legal system,” Scalia said. “To allow lower courts to behave as we do, ‘updating’ the Eighth Amendment as needed, destroys stability and makes our case law an unreliable basis for the designing of laws by citizens and their representatives, and for action by public officials. The result will be to crown arbitrariness with chaos.” Tony Mauro can be contacted at [email protected].

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