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jurisprudence: The law, lawyers, and the court.

They Execute 17-Year-Olds, Don't They? A very bad week for John Lee Malvo.

By Dahlia Lithwick
Posted Thursday, Oct. 24, 2002, at 4:46 PM ET

We know next to nothing about John Lee Malvo, the 17-year-old arrested Thursday in connection with sniper attacks that have left 10 people dead in the D.C. area. Reportedly, he is a Jamaican citizen and the stepson of John Allen Muhammad, a Gulf War veteran also arrested Thursday morning. According to MSNBC, Malvo was allegedly "brainwashed" by Muhammad and forced to eat only honey and crackers. Malvo briefly attended high school in Bellingham, Wash., and is described by a schoolmate as a "nice kid."

One thing we do know for certain about Malvo is that he picked the wrong week to be a teenage murderer. If Malvo committed a capital crime—in either the D.C. area or in Alabama—he's chosen to be a killer in one of only seven countries in the world that will execute a juvenile for it. (The Death Penalty Information Center indicates that we join such bastions of human rights as Iran, Pakistan, Nigeria, Saudi Arabia, Yemen, and the Democratic Republic of Congo in so doing.)

And Malvo chose badly not only in terms of countries in which to be a juvenile murderer but also in terms of states. Almost all the homicides occurred in Maryland, Alabama, and Virginia—all death penalty states (although there is currently a moratorium on executions in Maryland). And according to the Death Penalty Information Center, Alabama and Virginia will permit the execution of 16-year-olds. So if Malvo is tried there for a capital offense, this week will turn out to be worse for him than he could have imagined.

Things might have turned out better for Malvo had the U.S. Supreme Court agreed this past Monday to revisit a 1989 decision allowing states to execute defendants for crimes committed while they were 16 and 17 years old. (It is now the law of the land that 15-year-old criminals are too young to be executed for their crimes.) Five justices refused to reopen this issue, and so—more bad news for Malvo—the state laws will stand.

The four justices who dissented from the court's refusal to hear this issue analogized it to last term's decision, in Atkins v. Virginia, that executing the mentally retarded constitutes cruel and unusual punishment under the Constitution's Eighth Amendment. But Justices O'Connor and Kennedy—who joined in the latter decision—voted without comment not to hear the case about executing minors.

According to Justice John Paul Stevens, who wrote Monday's dissent, 16- and 17-year-olds are like the mentally retarded in that they are not likely to be deterred by a death penalty, and that "neuroscientific evidence of the last few years has revealed that adolescent brains are not fully developed, which often leads to erratic behaviors and thought processes in that age group."

To be sure, when Justice Stevens and the dissenters think about 17-year-old killers, they are imagining a psychosocial stew of hormones, playgrounds, shaming, and a lack of impulse control that usually characterizes teenage violence. This case—with its meticulously planned acts of depravity and craven attempts at pecuniary gain—doesn't fit very well with Stevens' social science. Perhaps that's why O'Connor and Kennedy voted as they did. In the wake of Columbine, and through the eyes of the blood-spattered, 17-year-old serial killers aren't always confused children with underdeveloped brains. Sometimes they're just evil.