GWEN IFILL: Joining us to describe today's high court debate over crime, punishment and science is NewsHour regular Jan Crawford Greenburg, Supreme Court reporter for the Chicago Tribune.
So, Jan, tell us how the Christopher Simmons case that Betty Ann just told us about in that piece, how did that play out in the court today?
JAN CRAWFORD GREENBURG: Well, the lawyer for the state of Missouri urged the Justices to reverse that decision by the Missouri Supreme Court that it prohibited the execution of juveniles like Christopher Simmons.
He argued that the legislatures and not the court should be determining what is the appropriate age of execution, and that 17-year-olds can be just as culpable as a 25-year-old and a 30-year-old and that the Constitution does not require that someone who is 17-years-old, 364 days be treated differently than someone who is 18-years-old and two days.
A lawyer for Christopher Simmons urged the court to uphold the Missouri Supreme Court decision.
He said there was an emerging consensus, in fact there was a consensus among the states and in the world that this practice violated standards of decency and he referred to that scientific evidence that we just heard about as proof that this practice should not be permitted
GWEN IFILL: Has the court dealt with something like this before, have they wrestled with this issue before?
JAN CRAWFORD GREENBURG: Yes, they have. In 1989, that's the last time they really spoke directly to this, they refused to say that there was this kind of consensus against executing 16 and 17-year-old killers.
The year before, however, they said states and the federal government could not execute people who committed crimes when they were younger than 16.
So we've had 15 years to see if a consensus has emerged in the states.
And of course the lawyer for Mr. Simmons says that consensus has emerged and so the court should look at it differently this time around.
GWEN IFILL: Let's talk about the consensus. When you say consensus, do you mean the state legislatures have been acting -- when you talk about consensus around the world, other governments?
JAN CRAWFORD GREENBURG: Two very different questions. And the court may look at that in two very different ways because a lawyer for the state of Missouri said that world opinion is irrelevant and what we need to look at is the American views on this topic.
But a lawyer for Christopher Simmons, Seth Waxman, a former solicitor general, argued that we've had this experience in the states, seven more states have banned this practice since 1989, bringing to the total number of states to 30. So that's a consensus in this country. And then he pointed to the world opinion.
He said the United States is literally alone; that of the 110 countries that allow capital punishment, only the United States and Somalia permits it for juveniles, not Mongolia, not China, not Saudi Arabia.
So he made the point that it was the United States and the world. Now some of the Justices don't believe that we should look beyond our borders and see what the other countries do. So there was some debate about that today.
GWEN IFILL: Why is 18 the bright line here, that age of 18? Why not 17 or 19? Was there any discussion about that?
JAN CRAWFORD GREENBURG: Right, the lawyer from Missouri said that should be up to the states because why -- it is an arbitrary decision.
The science research doesn't stop at 18. Brains continue to mature until 25. So if we're going to rely on science, why stop at 18? But the attorney for Christopher Simmons, Mr. Waxman said today that 18 is really in other areas the bright line between childhood and adulthood, Justice Ginsburg for example today pointed out that 18 is an age in which people can vote, serve on juries.
Younger than that, you know, kids and people younger than 18 don't get the same kind of protections and the same kind of rights that society and the juvenile justice system protects them.
GWEN IFILL: Did the Justices react to this argument that we saw in Betty Ann's piece about science as an argument for discerning the way a murderer might think that's different if you're 18 than if you're 20?
JAN CRAWFORD GREENBURG: Yes, and Justice Kennedy talked about that quite a bit.
Now keep in mind that four justices, we know that here are four Justices on the Supreme Court who believe that the death penalty should not be permitted for juveniles.
GWEN IFILL: They've said that.
JAN CRAWFORD GREENBURG: They said that in a case two years ago. So we need one more Justice. And of course those were the four more liberal Justices. So we look to the more moderates: Justice Sandra Day O'Connor and Justice Anthony Kennedy.
And Justice Kennedy today seemed very troubled by the evidence, the argument that scientific evidence should change their thinking on this issue. He noted that this was not presented at the trial; that the state never had a chance to counter this argument or put forth evidence of its own. So he seemed very suspicious and very baffled about relying on scientific evidence for his reason to rule that the juvenile death penalty is unconstitutional.
However, Justice Kennedy did seem quite troubled by arguments that the world opinion was against us. And that's an area where he may, I think, find himself with those other four who have already declared they oppose this practice.
The other Justice, Justice Sandra Day O'Connor, was largely quiet, which is unusual for her. She often is very active from the bench, questioning lawyers for both sides. She asked one question today.
She asked the lawyer for the state of Missouri if the court needed to look at its decision two years ago when it ruled that states could not execute mentally retarded. In that case, the court found there was a national consensus against the practice; thirty states had opposed that practice; thirty states oppose now the practice for juveniles. She asked, don't we have to at least consider that?
GWEN IFILL: Have there actually been in the years since we've... since the court last spoke to something like this, have there been juvenile executions?
JAN CRAWFORD GREENBURG: Justice Breyer made that point today: that of all the states that continue to … that allow for juvenile executions, states just aren't executing them. Alabama, for example, hasn't executed anyone since 1961.
And in the last ten years, only three states have sentenced juveniles to death. So he made the point that that illustrates that society has turned against this practice; even in states where there is a juvenile death penalty, juries aren't sentencing juveniles to death and even in states where juveniles are on death row they aren't being executed.
GWEN IFILL: How many people would be affected by this ruling? How many people are actually on death row?
JAN CRAWFORD GREENBURG: There are 72 people on death row for murders they committed at 16 or 17 years old. But this could go much beyond this because it gives the court again a chance to curtail the use of the death penalty.
That's a debate that this court has waded into several times in recent years as the Justices have expressed concerns about how fairly the death penalty is being administered.
GWEN IFILL: It could also affect people whose cases haven't been decided yet like the Washington area sniper who was I guess 17 at the time -
JAN CRAWFORD GREENBURG: That's right.
GWEN IFILL: -- he did what he did. And he hasn't even been found guilty or been sentenced to death at this point.
JAN CRAWFORD GREENBURG: That's right. In fact, the jury declined to sentence him to death in one jurisdiction.
GWEN IFILL: Okay. Thank you very much, Jan.
JAN CRAWFORD GREENBURG: You're welcome.