One of the most controversial and highly publicized issues to hit the Supreme Court's docket this term deals with juveniles and death.  The United States stands as one of the few nations in the world that permits the execution of persons under the age of 18.  While in the late 1980s the nation's highest court drew a clear line, designating juveniles 15-years old and younger ineligible for the death penalty, today, it is still constitutional to sentence people to death who were 16 and 17-years old when they committed their crimes.

A case currently before the Supreme Court, Roper v. Simmons, is poised, in the eyes of many civil rights activists, to put an end to that practice, however.  Vivian Berger, General Counsel for the American Civil Liberties Union and Nash Professor Emerita of Law at Columbia University, is among many who would like to see the elimination of the juvenile death penalty altogether.  While the country waits for the Supreme Court's ruling on the matter, Berger talked with The Corrections Connection about the legal history of the juvenile death penalty and what she sees in store for its future.

Q: How has the legal landscape in the United States evolved since 1989 when the Supreme Court ruled, in Stanford v. Kentucky, that it was not unconstitutional to execute people who committed crimes when they were 16 or 17-years old?

Berger: The major thing that happened that impacts the juvenile death penalty is, strangely enough, the fact that a case where the Supreme Court recently outlawed the death [penalty for] the mentally retarded has come down.  That [case], Atkins v. Virginia, provides, essentially, a roadmap for people who are now arguing that the juvenile death penalty should be abolished.

First of all, in the death penalty area in general, as time has gone on, we've had fewer and fewer of what we call the "big issues" remaining, like Is the death penalty, as such, unconstitutional? or Can the death penalty be imposed for crimes other than homicide? - things like that.  So, often, the Supreme Court has been more [interested in procedural issues related to the death penalty].   Many of our death penalty cases arrive in a habeas corpus context.  There has not been that much focus on the big issues, which, I think, most interest the public.

[But, like the] Atkins [case], the Simmons [case] raises a big issue: Can 16 and 17-year old [offenders] receive the death penalty?  Roper v. Simmons is similar to Atkins in one particular, significant way: Atkins could not prevail unless he succeeded in getting the Supreme Court to overrule a prior decision, exactly in point - Perry v. Lynaugh.  In 1989, [the Supreme Court] held [in that case] that it wasn't unconstitutional to impose death on the mentally retarded.  Atkins managed to [get that decision overruled] 6-3 [in 2002].

The same day [the Supreme Court decided] the Perry case in 1989, so, too, Stanford v. Kentucky came down.  [In] that case, [the Supreme Court] held that there was no constitutional prohibition on executing 16 and 17-year olds.  Just as a little background, in Thompson v. Oklahoma [in 1988], the court split 4-1-4 [on the question of whether or not it constituted cruel and unusual punishment to execute persons who were 15 years of age or younger at the time of their offense].  The bottom line was 15 year-olds could not be executed.  That left the question, what about [juveniles] older than 15-years old?  That is where we stand now.

Q: How does Roper v. Simmons compare to Atkins v. Virginia?

Berger: I think, most significantly, Atkins has provided what I have called "a roadmap to victory" for Simmons.  That victory depends on a vote from Justice O'Connor or Justice Kennedy.  The liberal contingent [of the Supreme Court] has already indicated that it would support banning the death penalty for 16 and 17-year olds.  We are really talking [about] O'Connor and Kennedy [who we expect to also support banning the juvenile death penalty].

We won't be getting [Justices] Rehnquist, Scalia and Thomas [to ban the juvenile death penalty - they have] indicated their feeling the other way.  In all these cases, the kind of analysis that you have to perform is as follows: first, the court has to ask whether the usage in practice violates the so-called "evolving standards of decency that mark the progress of a maturing society." [But], how do you assess these evolving standards?  There's been some argument about that, [but] everyone agrees that [the court] just should look first and foremost in trying to identify a consensus to pertinent statute, which is essentially a headcount of the states.  The Justices agree that you also look to the behavior of sentencing juries and how often those juries actually sentenced [juveniles to death].  That's where the court begins to disagree.  The liberal contingent could also look more broadly at [what] important groups in society, [like civil rights groups have to say and at the] international viewpoints.  That's kind-of an interesting little segue to what is going on in the United States.  Some people like President Bush don't care what's going on in the rest of the world [and some are concerned with issues internationally].

This headcount of the states is most important, [though].  What does the statutory scene look like?

In Atkins, Justice Stevens, who wrote for actually six members of the court, deemed sufficient a legislative headcount against the execution of the mentally retarded of 31 jurisdictions.  That 31 also includes those 12 states that barred capital punishment entirely, which is another argument of dissenters [because why are they being counted if they don't have any form of the death penalty]?  [But], the way they did the headcount, it added up to 31 jurisdictions.  Also important in Atkins, [is the fact that] he majority noted what they called the "consistency of the direction of change."

[So,] how does this relate to Roper?  In both settings, [in] intervening years, increasingly, everything has gone one way.  States have raised the age for people who are eligible for execution and passed statutes, which forbid [the execution of juveniles].  The actual headcount in Simmons, like in Atkins, [is that] 31 jurisdictions [have banned the death penalty for 16 and 17-year olds, just like [with the] mentally retarded.  That's really an awful lot of similarities to a case (Atkins) that we find very helpful.

Q: How can juveniles be compared to the mentally retarded in regard to the death penalty?

Berger: The Supreme Court [as] part of the inquiry, most members of the court say you also have to ask the Justices have to make their own inquiry whether they think the death penalty is disproportionate to the defendants' blameworthiness.  Mostly, the court asks the question, does the death penalty fail to contribute to the "legitimate" goals of capital punishment (some of us don't think capital punishment is legitimate), which have been said to be retribution or deterrence.  Simmons argues, much as they argued in the Atkins case, that even older juveniles, like the mentally retarded, do not have the fully formed capacity to exercise rational and mature judgment and control their conduct.  Clearly, they can to some extent, but compared to adults, there are significant differences.

Also for the same reason, it is stated that they are less culpable than adults and basically that they are still in the process of change.  [In Simmons' lawyer's brief it states that] adolescents change and that changeability makes it virtually impossible to reach a reliable judgment that the circumstances of a 16 or 17-year old are the experience of a sick and intractable criminal character.

Q: During the oral argument for Roper v. Simmons that took place in October, Justice Scalia made the point that, for adults who have changed because they found religion after they have been convicted of a crime, the death penalty stills applies.  What is your response to an argument like that?

Berger: If somebody has totally changed on Death Row, [clemency] is what is meant to take care of situations like that.  I think the difference [with] juveniles is that you can identify a class of people who, by their very nature, have a fluid personality and character.  We can say that before the fact.  It's true enough of a group, same as with the mentally retarded.

[With adults on death row], we don't know [that] ahead of time.

The people argued in the Atkins case that mentally retarded people are very ill-suited to coping with the investigative and adjudicative processes.  The same kind of argument applies to juveniles.  They get talked into [things].   They are very counterintuitive.  Juveniles are more apt to exaggerate their role in the crime (due to pressure from co-defendants or to show off).  They do things that hurt themselves [legally].  Also, they're not so good at cooperating with counsel.  [And they are] likely to have inappropriate demeanor at trial.  We all know what adolescents are like.

Q: How much weight does (or should) the international opinion of the juvenile death penalty carry in this case?

Berger: The majority of the court now [is] on record not as saying [the international feeling] is not the most important thing, but it carries some weight.  Some of us feel that there is wisdom in looking to the broader world.  At least five members of the court, maybe six, are listening to this argument.

Q: Can you discuss the amicus brief filed by several civil rights organizations, including the ACLU?

Berger: Essentially, people who kill white citizens are more likely to get the death penalty because whites are valued more highly in this society.  Black offenders with white victims are more likely to get the death penalty. It seems like black juveniles, period, as defendants are in the worst situation. There really haven't been that many death penalties imposed on juveniles.  For [the above] reasons, we are arguing that there should never be. 

Youth, which is mitigating, in general, to jurors does not seem to have a mitigating effect in cases that involve young, male, black defendants because they fit the stereotype image of person you don't want to meet in a dark alley.  [They are often] viewed as predators.  Essentially, decision makers discount the mitigating value of youth for that reason - predominately youth of color.

The brief itself goes into various, more general reasons why black, youth[ful] defendants don't [receive fair treatment in the justice system].  It's kind-of like adding up - at every stage these young people of color are disadvantaged.  [Their youth is] viewed as a aggravating rather than mitigating [because people believe the] person will live to kill again.  [That is] more common in case involving black youth.

Q: How do you think the Supreme Court will rule in the Roper v. Simmons case?  Do you think that the court is poised to put an end to the juvenile death penalty?

Berger: I predict we will win it. I think we may even get both [Justice] O'Connor and [Justice] Kennedy.  Both O'Connor and Kennedy signed on in Atkins.  They were in the majority.

It was just amazing to me how well we fit into the Atkins schema.  We absolutely know we have four [justices on our side].  I'd be willing, on this one, to cast our fate in with O'Connor, at least, and probably Kennedy.