Too Young to Die

In his Norman, Okla., law office, attorney Steven Presson stores two unusual keepsakes. One is a leather pouch that holds the ashes of Sean Sellers, the only person executed for a crime committed as a 16-year-old since the death penalty was reinstated in the U.S. in 1976. Sellers–who murdered his mother, his stepfather and a store clerk–was dispatched by lethal injection in 1999, when he was 29. Presson’s other memento is a plastic box containing the ashes of Scott Hain, who, it now seems fair to say, was the last juvenile offender to be executed in the U.S. Hain, sent to his death in 2003 at the age of 32, was 17 when he and a friend committed a grisly double murder.

Presson, who represented both boys, found it “very bittersweet” when the U.S. Supreme Court ruled last week that it was cruel and unusual to sentence anyone to death for crimes committed before the age of 18. “I’m happy for those on death row, but it came six years too late for Sean and two years too late for Scott,” says Presson. “We’ve been arguing for decades that kids don’t have the same moral culpability that adults have, and finally, finally, they listened.”

It took 16 years for the high court to come around to Presson’s point of view, by a narrow 5-to-4 vote. In 1989 the court ruled 5 to 4 the other way. Justice Antonin Scalia, who wrote the 1989 decision, argued that there was neither a “historical nor a modern societal consensus” forbidding capital punishment for 16- or 17-year-olds (though the court had found such a consensus for those under 16 a year earlier). Last week, however, Scalia was on the short side of the decision.

What changed? The views of Justice Anthony Kennedy, for one thing. While Kennedy voted with Scalia in 1989, he wrote a very different majority opinion this time around. Why did Kennedy change his mind? Legal tradition invites him to do so. Since 1958 the court has applied a flexible standard to interpreting the Eighth Amendment’s ban on “cruel and unusual punishments.” What we mean by the phrase, wrote then Chief Justice Earl Warren in Trop v. Dulles, depends on “the evolving standards of decency that mark the progress of a maturing society.”

How do you know that society no longer believes in sentencing a 17-year-old killer to death? Kennedy’s argument mirrors his reasoning in a 2002 decision that outlawed death sentences for the mentally retarded. He notes that since 1989 five states have banned capital punishment for juveniles, making the practice illegal in 30 states, including the 12 with an outright ban on executions. Second, Kennedy cites scientific literature showing that, like the retarded, adolescents lack mature judgment and a full appreciation of the consequences of their actions. They are also more vulnerable than adults to peer pressure. Third, Kennedy points out that only seven other countries have executed juvenile offenders since 1990, and all seven have repudiated the practice: “The United States now stands alone in a world that has turned its face against the juvenile death penalty.”

“This reference to international practices is a very big deal,” says Cass Sunstein, a constitutional scholar at the University of Chicago Law School, and is part of a surprising new trend in Supreme Court thinking. Overseas legal practices were also cited by the court in the 2002 ruling on the mentally retarded and in a 2003 decision overturning a Texas law banning gay sex. For his part, Scalia blasted his brethren for suggesting that “American law should conform to the laws of the rest of the world” and pointed out that the U.S. has unique legal traditions.

In the 12 states where juvenile offenders have been languishing, death sentences will be lifted for 72 offenders. That brought dismay to many victims’ families. Martin Soto-Fong was 17 in 1992 when he and two accomplices robbed the El Grande Market in Tucson, Ariz., for $300 and shot three workers. Richard Gee, who lost a brother and an uncle that day, is not happy to see the murderer exit death row. “We had him at the gates of hell,” he says, “and he got kicked back.” –With reporting by Eric Ferkenhoff/ Chicago, Wendy Grossman/Houston and Stacy J. Willis/Las Vegas