- The Washington Times - Wednesday, August 27, 2003

The Missouri Supreme Court has declared it unconstitutional to execute murderers who were juveniles —a 4-3 decision that the dissenters derided as an attempt to overturn the U.S. Supreme Court.

By commuting the death sentence of Christopher Simmons, now 27, to life without parole, the state court’s new Democratic majority overturned the court’s own 1997 decision upholding Simmons’ death sentence for throwing Shirley Crook, 46, bound and gagged into the Meramec River to drown in September 1993.

All four judges in the majority on Tuesday’s ruling were appointed by either the present Democratic governor, Bob Holden, or the late Mel Carnahan, also a Democrat. The dissenters were appointed in 1991 and 1992 by Republican former Gov. John Ashcroft, now U.S. attorney general, who appointed six of the seven judges in the 1997 hearing.

Although the majority contends the situation has changed, its ruling that executing a killer who was under 18 at the time of a capital crime is cruel and unusual punishment in violation of the Eighth Amendment contradicts a 1989 U.S. Supreme Court ruling, Stanford v. Kentucky, that the justices refused to revisit as recently as January.

“This court is bound by the United States Supreme Court’s decision in Stanford v. Kentucky and simply has no authority to overrule that decision,” said the dissent written by Judge William Ray Price Jr. “It is the prerogative of the Supreme Court of the United States, and its alone, to overrule one of its decisions.”

Missouri Attorney General Jay Nixon yesterday vowed to appeal directly to the U.S. Supreme Court a decision he said “flies in the face” of high-court precedents.

“I don’t think it’s the job of the Missouri Supreme Court to be a legal Ouija board. Two weeks later sitting in front of a birthday cake with 18 candles on it would not alter the mental state of a John Malvo or a Christopher Simmons, in my opinion,” Mr. Nixon said, referring to the sniper case defendant who was a juvenile when the shootings occurred.

The high court could let the decision stand, which would confine its effect to Missouri, summarily overturn it, or hear arguments and issue a full opinion on the underlying question of executing juvenile criminals, a prospect defense lawyers expect would go against them.

“This court finds that … a national consensus has developed against the execution of juvenile offenders,” ruled Judge Laura Denvir Stith, who cited changing attitudes in state legislatures since the U.S. Supreme Court upheld execution of juveniles in the Stanford case, and recommendations by a score of interest groups that oppose the death penalty.

“Courts should be guided by the conceptions of decency of modern American society as a whole,” Judge Stith said, quoting from an earlier death penalty decision by the U.S. Supreme Court.

The majority judges said they were persuaded to extend the “evolving standards of decency” principle articulated most recently by the U.S. Supreme Court in June 2002 to ban execution of retarded murderers.

Since October, however , the high court twice has voted not to rehear the question of executing murderers who were juveniles. Opposing the decision each time were Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen G. Breyer.

“The practice of executing such offenders is a relic of the past and is inconsistent with evolving standards of decency in a civilized society. We should put an end to this shameful practice,” the four said in a dissent Justice Stevens wrote when the Stanford case was reviewed again in October, 13 years after the original decision.

Without explanation, the four justices did not exercise their prerogative to accept either of two appeals for a full hearing. It requires four votes to put a case on the docket.

After Stanford lost at the court, his sentence was commuted to life by Kentucky Gov. Paul Patton, a Democrat. In January, the court turned away Scott Hain, who was executed in Oklahoma on April 13 for burning to death a man and woman in a car when he was 17.

“The denial of our appeal was a pretty clear signal to us that the four justices who would end juvenile executions know there are five solid votes for juvenile executions,” Hains’ lawyer, Steven M. Presson, told The Washington Times yesterday.

Mr. Presson said he believes public attitudes about Lee Boyd Malvo’s role in the upcoming sniper trials will poison any decision on the issue. He said death-penalty appeals specialists hope the Simmons case will not trigger a full hearing that likely would lock in states’ authority to execute murderers who were 16 or 17 years old.

“Time and learning are going to convince at least one of those other five justices, but once the court has ruled in a case like that, it’s going to be years before they reconsider the issue,” said Mr. Presson, who supports brain studies that show the ability of teenagers to control impulses is not fully developed. “Hopefully, Justice [Sandra Day] O’Connor or Justice [Anthony M.] Kennedy will come to that realization.”



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