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Washington—The U.S. Supreme Court ruled, 5-4, last week 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, No. 03-633, 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 become more visible on the issue. He allowed C-SPAN to air a Jan. 13 debate between him and Justice Stephen Breyer on the issue at American University. Scalia’s dissent was joined by Chief Justice William Rehnquist and Justice 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 Senator Joseph Tydings, D-Md., a partner at Washington-based 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 in the New York office of Heller Ehrman White & McAuliffe, who wrote a brief in the case for the American Medical Association and other medical groups.

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