- The Washington Times - Thursday, November 14, 2002

Should juvenile convicts be spared the death penalty, no matter how heinous their crimes? A sizable minority of justices on the U.S. Supreme Court says yes.

In a recent dissent, four justices argued that, in all circumstances,the execution of a convict under the age of 18 at the time he committed murder is unconstitutional. Their reasoning: Given their youth, juvenile offenders aren't as morally responsible as adults. Juveniles lack "the same capacity to control their conduct and think in long-range terms" as adults, they wrote.

Thus, according to the justices, it is never permissible to execute someone who committed a crime while under the age of 18. The New York Times agreed, calling the execution of juvenile offenders a disgrace.

One wonders what they would say today. Two days after the court opinion was issued (and a few hours after the Times editorial was finalized for publication), John Allen Muhammad and John Lee Malvo were arrested. It appears both will be charged with multiple counts of murder relating to the string of sniper homicides in the Washington metropolitan area.

The initial evidence gathered by the police makes it clear the sniper attacks were chillingly premeditated and deliberate. The sniper had a tripod and scope for firing the rifle. The car Mr. Muhammad and Mr. Malvo were driving had been modified to allow the sniper lie down in the trunk and shoot his victims through a hole in the back of the car, making escape that much easier. In short, the sniper hunted human beings as if they were deer in a forest, with as much care and forethought as a military battle planner.

Now, Mr. Muhammad and Mr. Malvo are innocent until proven guilty. But let's engage in a thought experiment and assume the two are convicted of these horrendous crimes. The initial assumption of investigators appeared to be that Mr. Muhammad was the shooter and Mr. Malvo drove the getaway car. But legally, the getaway driver for a serial murderer is as guilty of the crime as the shooter himself. If the driver were 25 years old, many juries likely would sentence him to death, even though his role was merely that of an accomplice.

Still, the driver's somewhat lesser role in the crime does make it possible a jury might show mercy and recommend that he not be sentenced to death. And that recommendation is made more likely by virtue of Mr. Malvo's youth a jury may not want to sentence a 17-year old accomplice to death.

But let's turn the picture around and modify our thought experiment.

What if the evidence proves Mr. Malvo was the shooter or, as some investigators believe, that he and Mr. Muhammad took turns hunting humans?

What if it were a 17-year-old who planned and executed each murder alone? Surely a jury wouldn't decline to impose the death penalty simply because he's several months short of his 18th birthday. To do so would mean drawing an arbitrary bright line between the acts of an individual who's 17 years and 6 months old and one who's 18.

But, critics reply, there are many instances in which the law draws bright lines based upon age. Yet it's wrong to think that only with the maturity necessary to drive carefully, drink responsibly, and vote intelligently does one come to understand that murdering another human being is wrong. That kind of understanding comes at a much younger age.

Besides, we determine the guilt or innocence of any defendant on an individual basis. Laws governing driving, drinking and voting represent gross generalizations appropriate in making broad public policy but utterly inconsistent with our concept of individual criminal responsibility.

The absurdity of the position taken by the court dissenters is only heightened by the arrests made in the sniper case. Their reasoning boils down to this: A juvenile should never be punished in proportion to his crime because he always lacks culpable moral responsibility. But if the evidence at Mr. Malvo's trial proves what most people suspect, there can be little doubt as to moral culpability. Either as driver or shooter, Mr. Malvo apparently acted as a knowing participant in a string of coldblooded murders. It makes no sense to say such conduct is categorically ineligible for the death penalty.


Paul Rosenzweig, an adjunct professor of law at George Mason University School of Law, is a senior legal research fellow at the Heritage Foundation.


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