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Court Ruling Encourages Death Row Opponents
By: Hazel Trice Edney
NNPA, Washington Correspondent
Originally posted 3/7/2005

WASHINGTON (NNPA) – In 1988, the U. S. Supreme Court left it up to states whether 16- and 17-year-olds could be given the death penalty. But last week, the court reversed itself in a 5-4 decision that nullifies death sentences given to offenders who committed capital crimes while under the age of 18.

The fact that the justices reversed themselves heartened death penalty opponents who hope that the court will eventually examine the role race plays in capital murder cases, whether it’s the suspect or the victim.

“They didn’t base this decision at all on race, they didn’t add up the number of minorities or anything like that, but that’s who it was disproportionately affecting,” says Richard C. Dieter, executive director of the Death Penalty Information Center. “So, I think the bigger issue on race is that the Supreme Court is, I think, saying that the door is still open for reconsidering things that its decided in the past.’”

According to the center, there were 29 Blacks, 26 Whites, 16 Latinos and one Asian among juvenile offenders on death row when the court ruled in the Missouri first-degree murder case, Roper v. Simmons, that the execution of juveniles is cruel and unusual punishment. Two-thirds of the youth offenders are people of color whose lives have now been spared. The court said the ruling was also because of growing international sentiments against the execution of juveniles. In the world community, the U. S. stands alone in sanctioning the death of juvenile offenders.

Blacks making up only 12 percent of the nation’s population but 42 percent of death row (1,444). By contrast, Whites constitute 71 percent of the U.S. population but only 46 percent (1,576) of death row inmates.
In the Missouri case, the defendant, Christopher Simmons, now 27, was 17 when he murdered a woman who recognized him when he and a 15-year-old companion burglarized her house.

After the Circuit Court of Jefferson City convicted him and sentenced him to death, Missouri’s Supreme Court ruled 4-3 to overturn his death sentence because of his age. They ruled that the executions of juveniles have become so rare that they constitute cruel and unusual punishment, a violation of the 8th Amendment to the U.S. Constitution. The Supreme Court upheld that ruling.

“When a juvenile commits a heinous crime, the state can exact forfeiture of some of the most basic liberties, but the state cannot extinguish his life and his potential to attain a mature understanding of his own humanity,” writes Justice Anthony M. Kennedy. “While drawing the line at 18 is subject to the objections always raised against categorical rules, that is the point where society draws the line for many purposes between childhood and adulthood and the age at which the line for death eligibility ought to rest.”

People under 18 cannot vote and cannot serve in the armed services without their parents’ permission. They cannot purchase liquor, and, ironically in the state of Louisiana, they cannot witness an execution unless they are the one being put to death.

Although Black and Brown juveniles represent 21 percent of the 16- to 17 year-olds in America, they represent more than triple that proportion (66 percent) of all death row inmates sentenced as juveniles.

Death penalty opponents say that race of the victim is also a factor. For example, of the 72 juvenile offenders on death row, 71 percent (65) of their victims were White. Nine percent were Black, 11 percent were Latino and 7 percent were Asian.

“If you kill a White person, you’re much more likely to get the death penalty than if you kill a minority or a Black person. Over 90 percent of the studies have come to the same conclusion. So it’s a very strong core of evidence,” says Deiter of the Death Penalty Information Center. “Studies have been done in virtually every death penalty state around the country and they all keep coming to the same conclusion. So there’s a very powerful body of scientific knowledge that they can use now.”

At the time of high court’s ruling, 19 states had no death penalty for juveniles: California, Colorado, Connecticut, Illinois, Indiana, Kansas, Maryland, Missouri, Montana, Nebraska, New Jersey, New Mexico, New York, Ohio, Oregon, South Dakota, Tennessee, Washington and Wyoming.

Ted Shaw, director-counsel and president of the NAACP Legal Defense and Educational Fund, recalls being deeply troubled when the high court ruled 5-4 against an LDF case in 1987 that raised the issue of racial discrimination in the imposition of the death penalty( Mcklesky v. Kemp.)
In this Georgia murder case, the LDF argued that prosecutors sought the death penalty in 70 percent of the cases involving Black defendants and White victims. Yet, they sought the death penalty 15 percent of the time when the defendant was Black and the victims was also African-American.

Overall, 81 percent of the prisoners on death row since 1976 had victims that were White.

“There we put before the Supreme Court all of the remnants of racial discrimination and the imposition of the death penalty in Georgia, not only with respect to the race of the defendant, but also the race of the victim,” Shaw recalls. “And the court basically said, ‘Even if we accept your evidence at face value, you’re asking us to do more than we’re willing to do. It would require uprooting an entire criminal justice system.’”

Death Penalty decisions have taken several twists and turns over the years.

A Supreme Court decision resulted in a national moratorium in 1972 because the court ruled that laws governing the death penalty in some states were arbitrary and capricious and therefore constituted cruel and unusual punishment.

After death penalty laws were tightened at the state level, the Supreme Court upheld the constitutionality of the death penalty in 1976. Legal executions resumed the following year.

In 1988, the Supreme Court decided 5-4 (Thompson v. Oklahoma), to strike down the juvenile death penalty for youth at the age of 16. In another 5-4 decision in 1989, (Stanford v. Kentucky) the court said states could impose the death penalty on offenders ages 16 and 17.

Shaw says it would be a stretch to predict a near future reversal of Mcklesky v. Kemp, the 1987 race and the death penalty case.

“I refuse to ever be hopeless because when you’re hopeless, you might as well lay down and die,” he says.
William Shultz, director of Amnesty International U.S.A., which, for nearly two years, has led a global campaign against the juvenile death penalty, says a key to last week’s win was that the U. S. had shamed itself in the context of the world.

“The overwhelming weight of international opinion against the juvenile death penalty is not controlling here, but provides respected and significant confirmation for the court’s determination that the penalty is disproportionate punishment for offenders under 18,” Kennedy writes. “The United States is the only country in the world that continues to give official sanction to the juvenile penalty.”

Agreeing with Kennedy were Justices John Paul Stevens, David Souter, Ruth Ginsburg and Stephen Breyer. Justices Sandra Day O’Conner, Antonin Scalia, William Rehnquist and Clarence Thomas dissented.

Shultz says opponents will continue to fight, focusing on race as well as other issues of unfairness.

“We’re going to have to keep fighting and this is not an easy fight,” says Shaw. “One thing you know is you won’t always win. But if you don’t fight, you don’t have a chance of winning. That’s why I say we’ve got to keep hanging in there and keep swinging.”

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