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Executing Young Killers Is Upheld : High Court OKs Death Penalty for 16-Year-Olds, the Mildly Retarded

June 27, 1989|DAVID G. SAVAGE | Times Staff Writer

WASHINGTON — Murderers who are as young as 16 or who suffer mental retardation may be put to death, the Supreme Court said Monday, ruling that the execution of such people is not "cruel and unusual" punishment banned by the Eighth Amendment.

On a 5-4 vote, the justices said that neither youth nor mild retardation bars a state from imposing a death sentence, so long as a jury has considered these factors before deciding a defendant's fate.

The two rulings affect only a few dozen of more than 2,200 inmates on Death Row in the United States, but they show clearly that the court's conservative majority intends to defer to state legislatures on the death penalty.

According to public opinion polls, most Americans oppose executions for juveniles and the mentally retarded, although they support capital punishment in general. In addition, a host of scientific, legal and human rights groups urged the court to ban such executions as a blot on the nation's record of decency and a failure in deterring crime.

Dismissing this evidence, the court's conservatives said that what counts is the state legislatures. Since many states continue to permit death sentences for killers who are youthful or retarded, the justices said that they also will allow them.

Justice Antonin Scalia, writing for the five conservatives in the majority, said that the court is not "a committee of philosopher-kings" with a license to strike down the unpleasant decisions of elected state legislators.

Of the 37 states that permit capital punishment, 22 say that it may be imposed on people as young as 16. (California sets a minimum age of 18 for capital punishment.) Only Georgia and Maryland specifically forbid capital punishment for mentally retarded murderers, although every state prohibits the execution of people who are profoundly retarded or insane.

Unfamiliar Company

While it was a victory for state's rights, the Supreme Court's decision leaves the United States in unfamiliar company. Since 1979, five nations have executed people who committed crimes while under age 18, according to an Amnesty International report cited by the court. They were the United States, Pakistan, Bangladesh, Rwanda and Barbados.

Death penalty foes denounced the two rulings Monday as "appalling."

"To let society hang children is medieval and barbaric," said Henry Schwarzchild of the American Civil Liberties Union.

James Ellis, president of the American Assn. of Mental Retardation, said that he was "deeply disappointed" in the court, but he urged the state legislatures to move now to end capital punishment for mildly retarded people.

Peter Arenella, professor of law at UCLA and a criminal law expert, called it a "moral outrage" for the court to allow executions of retarded people. "No one would think you should execute a normal 8-year-old who killed his brother or sister. Here, you are talking about someone who doesn't have the same capacities as a normal 8-year-old," he said.

Justice Sandra Day O'Connor held the deciding vote in both cases decided Monday. She joined with the four liberal justices to invalidate the death sentence of a Texas murderer with a mental age of about 6. In 1979, the man, John Paul Penry, raped, beat and stabbed a young housewife. Before she died, she identified Penry, who later confessed to the crime.

But the Texas jury that sentenced Penry to death was not permitted to take into account his mental retardation. In recent years, the court repeatedly has said that sentencing juries must consider all of the "mitigating factors" in a murderer's background before deciding on a sentence of life in prison or death.

Because the Texas jury did not consider this "mitigating factor" for Penry, his death sentence must be reversed, O'Connor said, and the case returned for a new sentencing hearing.

However, her opinion went on to say that retarded murderers can be executed. This part of her opinion was joined by the four other conservatives: Chief Justice William H. Rehnquist and Justices Byron R. White, Anthony M. Kennedy and Scalia.

"Mental retardation is a factor that may well lessen a defendant's culpability for a capital offense," O'Connor wrote in the case (Penry vs. Lynaugh, 87-6177). "But we cannot conclude today that the Eighth Amendment precludes the execution of any mentally retarded person of Penry's ability convicted of a capital offense simply by virtue of mental retardation alone."

In the case involving two juvenile killers, O'Connor supplied the fifth vote for the conservative bloc in upholding the death sentences. Kevin Stanford was 17 when he murdered a gas station attendant in Kentucky. Heath Wilkins was 16 when he stabbed and killed a convenience store clerk in Missouri.

Last year, O'Connor, in an agonized and indecisive opinion, refused to allow a 15-year-old to be put to death, leaving the court split on whether juveniles could be executed.

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