Second thoughts

The Supreme Court decision eliminating the death penalty for killers who committed their crimes when they were under 18 clearly reflects a growing public uneasiness about capital punishment per se. That disenchantment has been growing in leaps and bounds with the development of technology that has cast doubt on the validity of executions in a civilized society.

More than 100 death-row inmates have been cleared by DNA tests and other technological advances in recent years, leaving the public to wonder just how many innocent persons were put to death before and even after these scientific advances. The instant ruling moves 72 inmates who committed their crimes while 17 or younger off death row _ 29 of them in Texas and 14 in Alabama, with the rest spread through 17 other states.

The court’s 5-4 vote setting an age floor for death sentences followed an earlier one allowing those judged to be mentally retarded to escape the ultimate punishment. In both cases, the majority determined that executions violated the Eighth Amendment ban on cruel and unusual punishment, even though those convicted might have committed crimes that easily could be categorized as heinous.

Certainly that was true of the case, Roper v. Simmons, that led to the decision to protect juvenile offenders. That case involved a 17-year-old who bound, gagged and blindfolded a female victim and threw her off a bridge into a river, an act that seemed clearly to demonstrate a calculated viciousness. Nevertheless, the court upheld the Missouri Supreme Court, which also found that juvenile executions were as odious as the events that caused them. Thirty states already had outlawed them. The high court’s decision brought this nation in line with the rest of the world, where even the most oppressive societies have abolished juvenile executions.

Reinforcing the theory that the court has been influenced by not only world opinion (which was clearly stated for the majority by Justice Anthony Kennedy) but also by the adult cases proven by technology to be flawed was the fact that, in 1989, the nine justices had ruled that executing those who committed crimes while teenagers was permissible under certain circumstances. Retreating from this position so completely appears to be a strong indication that the court, or at least the current majority, may feel it is time to re-examine the overall validity of capital punishment.

So where does this leave the opposing views about capital punishment generally?

Even with the technological strides, there has been a demonstrated reluctance on the part of the criminal justice system to adjust. Prosecutors and judges have seemed slow to order DNA testing that might overturn jury verdicts despite compelling reasons, including other evidence that points to innocence. If capital punishment is to have any validity as a deterrent for capital crimes, every safeguard possible must be automatically employed to determine guilt _ and that includes expensive tests. Juries are not infallible nor are their decisions inviolate or sanctified, although too often prosecutors would have us think otherwise to hide their own ineptness.

If only one innocent man or woman is put to death, the entire system has failed, and those dispensing the punishment are in violation of the Constitution. Most assuredly, there are criminals so depraved that eradication seems the only alternative. Warehousing these individuals in overcrowded prisons is a miscarriage of justice imposed on American taxpayers. That could be said of the suspect arrested in the notorious BTK killings if he is convicted. And it is true of the adult member of the Washington-area sniper team who already has been sentenced to death. But in the name of decency and justice, guilt should be irrefutable and not circumstantial in any sense. Too often it isn’t.

As for the then-17-year-old who helped terrorize this city and its environs for several weeks, there is ample evidence to suggest that he was influenced in his actions by the adult in whose charge he had been left. That misguided faith was compounded by his own immaturity and a clear lack of understanding of the consequences of his actions, even though he knew right from wrong.

It was just to this immaturity that the court spoke, invalidating the constitutional legality of holding those under 18 as responsible for their crimes as those who are adults. Those in the protected category clearly are better subjects for rehabilitation, it noted. The court was right in its decision, but now must once again address the overall question of whether the death penalty still has a place in a civilized society.

(Dan K. Thomasson is former editor of the Scripps Howard News Service.)