In mid-October, the Supreme Court heard the oral argument in Roper v. Simmons, a case on which the fate of the juvenile death penalty in the U.S. could rest.  Christopher Simmons was 17-years old when he murdered Shirley Cook; he was originally convicted of first-degree murder and sentenced to death. 

When the case landed before the Missouri Supreme Court, however, the state's high court overruled Simmons' death sentence, noting that since the Supreme Court ruled in Stanford v. Kentucky in 1989 that offenders who committed their crimes at 16 and 17-years of age could be sentenced to death, a national consensus has emerged against juvenile executions.

In light of this national consensus and society's changing standards, the Missouri Supreme Court re-sentenced Simmons to life in prison, without a chance for probation or parole.  Now, the case has made its way to the Supreme Court, which heard oral arguments in Roper V. Simmons in mid-October.  While the Supreme Court is not expected to issue a ruling before the end of the year, many civil right activists predict that the end of the juvenile death penalty in the U.S. is near.

James Layton, representing petitioner Donald Roper, Superintendent of Potosi Correctional Center in Missouri argued for the Supreme Court to leave up to the states the decision as to whether or not to sentence 16 and 17-year old criminals to death.  On behalf of respondent Simmons, lawyer Seth Waxman maintained that the minimum age for execution in the U.S. should be 18.

Comparing Roper v. Simmons to Atkins v. Virginia, a case in which the Supreme Court ruled that it is unconstitutional to sentence the mentally retarded to death, Waxman pointed out that "we have a substantial consensus within the United States, exactly the same lineup as was true in Atkins" against the juvenile death penalty.  He added that those states that do permit the execution of offenders who committed their crimes when they were 16 or 17-years old "are not only alone in this country, they are alone in the world."

Layton agrees that international opinion is important, however, he believes that the international feeling towards the juvenile death penalty should weigh more heavily on legislatures, not the Supreme Court.

"Congress should consider that," Layton said.  "It's an important consideration, but it is not a consideration under the Eighth Amendment."

Another facet of Waxman's argument focused on juvenile offenders' lack of maturity and their propensity towards change.  For these reasons, he said, they should not be subjected to the death penalty. 

"No psychiatrist and no juror can say with confidence that the crime that was committed by a 16 or 17-year old, on the average two years ago - and this is the key point - proceeded from enduring qualities of that person's character as opposed to the transient aspects of youth," he said.

Justice Scalia challenged Waxman's argument, however, asserting that "we punish people, criminals, for what were, not for what they are."

But, according to Waxman, "Science has confirmed what we intuitively know, which is that when the jury gets around to evaluating what the character was that manifested that horrible crime, they can't tell because of the passage of age and because of a number of confounding factors and because psychologists and psychiatrists can't tell themselves whether the crime that occurred two years ago or two weeks ago was the manifestation of an enduring character of transient psychological traits that rage in adolescence."

Some time was also spent during the oral argument discussing that fact that society has essentially drawn a line at 18 for juveniles to pass into adulthood.  Justice Ginsberg pointed out that people must be 18 years of age to do many things, including buy tobacco, vote, sit on juries and join the military.

But Layton believes that drawing a line "based purely on age" is over-inclusive when it comes to the juvenile death penalty and that legislators and juries should have the opportunity to determine which teen offenders are death eligible.

If the Supreme Court bans executions for juveniles who are 16 and 17-years old, Layton said, "having a bright line test means that the individual who murders at age 17 [and] 364 days is treated differently than a less mature individual who is two days older."

While the Supreme Court considers carving that "bright line" for juvenile offenders, many believe that the court is just one vote away from a majority ruling in favor of banning the juvenile death penalty.  Likely, that decision will be made in early 2005.