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When the U.S. Supreme Court dropped its latest capital punishment bomb, which forbids the execution of juvenile offenders, it hit Texas harder than any other state. The opinion affects the nation’s 70 death row inmates who committed crimes while juveniles — 28 of those in Texas. The 5-4 majority in Roper v. Simmons found 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 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 H. Rehnquist and Justice Clarence Thomas. Justice Sandra Day O’Connor wrote a separate dissent, which also came under attack from Scalia. TEXAS IMPACT Simmons has the greatest impact in Texas, which is expected to result in the largest commutation of death row sentences to life imprisonment since the 1972 U.S. Supreme Court decision in Furman v. Georgia. In Furman, the Court temporarily suspended all executions in the nation because of the arbitrariness of capital punishment laws. In the nation’s busiest capital punishment state, Texas prosecutors, defense attorneys and legal scholars alike believe Simmons signals that the high court may eventually do away with the death penalty. In 2002′s Atkins v. Virginia, the Court forbade states from executing mentally retarded inmates. “This case, together with Atkins, creates a blueprint for the judicial abolition of the death penalty altogether, because it discerns evolving standards of decency even in the absence of a legislative majority,” says Jordan Steiker, a University of Texas School of Law professor who teaches a course on the death penalty. “By analogy, the Court could conceivably find the death penalty itself to be contrary to the evolving standards of decency, even if a majority of the states still authorize the use of the death penalty,” Steiker says. For the 28 juvenile offenders on Texas death row, the most expedient way of having their sentences commuted to life is asking Texas Gov. Rick Perry for a commutation, three death-penalty experts say. There’s not much reason for appellate debate on Simmons — the defendants were either 17 at the time of the crimes or they weren’t. Offenders who were 16 or younger at the time they committed their crimes are not eligible for the death penalty in Texas. “These people will not be executed, so the question is why go through a lot of time and taxpayer money?” Jim Marcus, executive director of the Texas Defender Service, says of litigating Simmons appeals before the Texas Court of Criminal Appeals. Perry, in a statement released on March 1, says he is directing the Texas Board of Pardons and Parole to review the cases of all 28 juvenile offenders for a recommendation on the appropriate actions. Perry also says he will approve legislation that brings Texas in line with Simmons. Simmons infuriates Walker County District Attorney David Weeks, because it will result in a life sentence for Raymond Levi Cobb, who was sentenced to death for a 1993 double murder in which he killed a young mother and buried her 16-month-old daughter alive. Cobb committed the crimes when he was 17 years old. “In 23 years of prosecution, he committed about as horrible of a crime as I’ve ever seen. I think it’s unfair,” Weeks says of Simmons. “What [Cobb] did was horrendous. I don’t think the few months he had before he turned 18 made a big difference.” Cobb’s trial attorney, Huntsville solo Hal Ridley, says the high court made the right decision in Simmons. “I don’t think elated is the right word,” Ridley says of his reaction to Simmons. “But if I get a client off death row, I don’t feel any trepidation about that.” The decision will also mean that Mauro Barraza will soon get his death sentence commuted to life, says Charles “Chuck” Mallin, chief of the appellate section at the Tarrant County District Attorney’s Office. Barraza was 17 in 1989 when he murdered an elderly Haltom City woman with a pair of garden sheers to steal her costume jewelry and a carton of cigarettes. Mallin believes that, eventually, prosecutors will not be able to seek the death penalty against offenders such as Barraza, regardless of their age. “I’m not speaking for the office, but I don’t think [the death penalty] is going to be around for much longer,” Mallin says. Simmons is fantastic news for Barraza, says his pro bono appellate attorney Scott Schutte, a partner in Jenner & Block in Chicago. Barraza was hours from execution last year when the U.S. Supreme Court issued a stay pending the outcome of Simmons. “It boggles the mind that this even got as close as it did,” Schutte says of Barraza’s execution date, which Tarrant County Criminal District Court No. 1 Judge Sharen Wilson set even though the high court already had accepted Simmons for review. Simmons will also lead to a life sentence for Anzel Keon Jones, who was convicted in 1996 of murdering a woman and sexually assaulting her elderly mother when he was 17, says his attorney, Richard Burr, a partner in Houston’s Burr & Welch. “This is a great day for Anzel Jones,” Burr says. “He’ll go to school, get a job and learn a skill. I think the decision will improve his life dramatically.” J. Kerye Ashmore, an assistant district attorney in Grayson County who prosecuted Jones, did not return two telephone calls seeking comment before presstime on March 3. Ashmore told Texas Lawyer last year that he unequivocally didn’t want Jones’ sentence changed to life in prison. [See " A Killer Called Youngster"] GREAT DAY FOR JUSTICE “This is a great day for justice,” says former U.S. Sen. Joseph Tydings, D-Md., a partner in 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,” says Joseph McLaughlin, a partner in Heller Ehrman White & McAuliffe in New York, who wrote a brief in the case for the American Medical Association and other medical groups. McLaughlin adds that Simmons could give momentum to efforts to “erode the death penalty segment by segment.” For example, he says, 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 notes. Simmons 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 decision, the Court said that executing the mentally retarded violated the Eighth Amendment. Kennedy invoked the Atkins decision repeatedly and used similar reasoning about culpability and consensus in striking down the juvenile death penalty. 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 past 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. Texas is one of those three states. 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, says he respects 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,” Nixon says. Kennedy’s opinion, with its reference to moral values and social science research, also is likely to deepen conservatives’ anger toward the justice, named to the high court in 1988 by then-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 abortion, 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,” says 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 [Robert] Bork seat.” O’Connor wrote a separate dissent in Simmons, 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 precedent when it ruled in favor of Simmons in 2003. By affirming the Missouri decision without admonishing it for disregarding precedent, Scalia wrote, the majority eroded its own authority. “This is no way to run a legal system,” Scalia wrote. “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.”

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