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CRUEL AND UNUSUAL
HIGH COURT SHOULD DECLARE DEATH PENALTY FOR 16- AND 17-YEAR-OLDS UNCONSTITUTIONAL

The United States appears to be on a long, slow march away from the death penalty. And while it may take years or even decades before the journey is complete, a case pending in the U.S. Supreme Court could move the nation another step away from a practice that is incompatible with a society committed to justice.

The question the nine justices are considering is whether the execution of convicts who were 16 or 17 years old when they committed their crimes violates the constitutional prohibition against cruel and unusual punishments. The court has already invalidated laws that allowed capital punishment for anyone under 16, and more recently, those that allow the execution of mentally retarded people.

This decision is ripe for the making from several perspectives. Specifically, the United States is the only democracy in the world that allows such executions, and while the practice of other nations is not binding on this one, our isolation on this subject surely suggests that such executions might be considered "unusual."

Furthermore, as Justice Stephen Breyer observed during oral arguments, any parent understands the truth of the theory that minors are not fully formed human beings. Given the availability of other appropriate punishments for terrible crimes, it seems plausible that those who have not gained their maturity should not be subject to a punishment that should, by definition, be used only in the worst cases.

Beyond that is the indisputable fact that innocent people have been sentenced to death in this country. Nearly 100 of them were turned up on Illinois' death row just a few years ago, prompting then-Gov. George Ryan to commute the sentence of every one of the state's condemned prisoners.

The problems are multiple and insurmountable, because they grow out of the unavoidable influence of human nature. An innocent person can wind up in a death chamber because his lawyer is ineffective, because an ambitious prosecutor withholds exculpatory evidence, because police coerce a false confession, because a witness makes a wrong identification.

Any such error can, and has, been made in American death penalty cases. There is no reason to believe teenage defendants would be exempted from such flaws.

It is remarkable -- and also a sign of human nature -- that so many Americans continue to support the death penalty, even after it has been proved beyond any doubt that the system cannot reliably distinguish between the innocent and the guilty. What is the purpose of clinging to a practice that is inherently defective, especially when life without parole is a perfectly acceptable alternative, and one that preserves the possibility of reversal? There can be none.

The court needs to keep moving the country away from a practice that, by unintentionally condemning the innocent, must be cruel, and by virtue of the country's near solitary status of making the young pay with their lives, must also be unusual.