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6 January 2004

AI Index: AMR 51/003/2004

Lee Malvo was 17 years old at the time of the crime. In almost no other country in the world would he have even faced the possibility of the death penalty. The imposition of a death sentence on someone who was under 18 at the time of the crime violates a fundamental principle of international law, a principle recognized and respected by almost every country in the world. (1) Anyone asked to list characteristics they associate with childhood would likely include at least one of the following: immaturity, impulsiveness, lack of self-control, poor judgment, an underdeveloped sense of responsibility, a susceptibility to peer pressure, and a vulnerability to the domination or example of elders. Common agreement about such attributes, and a young person's potential to change, lie behind the global ban on the use of the death penalty for the crimes of children.

If Lee Malvo's jury had voted for death, he would have joined more than 70 others facing execution in the United States for crimes committed when they were younger than 18 years old. It is no idle threat. The USA accounts for over 70 per cent of such executions known since 1998 - including four of the five reported in the world in the past two years. It is an aspect of the death penalty which has become an almost exclusively US practice. (2)

After Lee Malvo's arrest on 24 October 2002, US Attorney General John Ashcroft had ordered that the suspect be transferred from federal custody to local prosecuting authorities in Virginia. His decision was based on a number of considerations, including that "the first prosecutions should occur in those jurisdictions that provide the best law... and the best range of available penalties". He added that it was "imperative" that the death penalty be an option. (3) Neither federal nor Maryland law provides for the death penalty for those under 18 at the time of the crime, but Virginia law does. Virginia is known for the relative speed at which it takes capital defendants from conviction to execution, and has executed three child offenders since 1998.

Attorney General Ashcroft and President Bush are known as keen proponents of judicial killing. Neither opposes the execution of child offenders - the Attorney General's move in the Malvo case is a stark indicator of this. The President's involvement has been even more direct - as Governor of Texas he allowed four executions of child offenders to proceed during his five-year term in office. Such officials should reflect upon where their support for this internationally illegal practice places them in the court of world opinion. A recent meeting in Rome of more than 20 Nobel Peace laureates, for example, concluded that "the death penalty is a particularly cruel and unusual punishment that should be abolished. It is especially unconscionable when imposed on children." (4) Today, 112 countries are abolitionist in law or practice, choosing not to carry out the death penalty against anyone, let alone child offenders.

In June 2002, the US Supreme Court overturned its 1989 decision, Penry v Lynaugh, in which it had found that the execution of people with mental retardation did not violate the constitutional ban on cruel and unusual punishments. Thirteen years later, in Atkins v Virginia, the Court found that "standards of decency", primarily reflected in state-level legislation, had evolved to the point where such executions were now unconstitutional. (5) On the same day in 1989 as the Penry decision, the Supreme Court ruled that the execution of 16- and 17-year-old offenders was constitutional. This decision, Stanford v Kentucky, still stands and was why Virginia prosecutors were allowed to pursue a death sentence against Lee Malvo.

In September 2002, Amnesty International published a 105-page report arguing that the Supreme Court could not claim to be a consistent arbiter of the US Constitution and at the same time fail to outlaw the execution of people for crimes committed when they were under 18 years old. (6) In other words, the Atkins decision must lead to an overturning of Stanford. Four US Supreme Court Justices, one short of a majority, have since agreed that "given our recent decision in Atkins v Virginia, we certainly should [reconsider Stanford]". These dissenters said that "offences committed by juveniles under the age of 18 do not merit the death penalty. The practice of executing such offenders is a relic of the past and is inconsistent with evolving standards of decency in a civilized society. We should put an end to this shameful practice." (7) Since then, Kevin Stanford, the prisoner at the centre of the Stanford v Kentucky ruling has had his death sentence commuted by the outgoing Kentucky governor. Governor Paul Patton described the death sentence in the case as an "injustice" because Stanford was 17 years old at the time of the crime. (8)

The Supreme Court's 1989 ruling included 16-year-old offenders by amalgamating Kevin Stanford's case with one from Missouri, that of Heath Wilkins, 16 at the time of his crime. (9) It is especially noteworthy, then, that in August 2003, it was the Missouri Supreme Court which decided that the death penalty against child offenders was now unconstitutional: "Applying the approach taken in Atkins, this Court finds that, in the fourteen years since Stanford was decided, a national consensus has developed against the execution of juvenile offenders...". (10) The state has appealed to the US Supreme Court.

There has been speculation that the Supreme Court refused to revisit its Stanford decision in 2002 and 2003 in the wake of Atkins because Lee Malvo's trial was still pending. (11) Perhaps the Court should now view the Virginia jury's decision not to sentence the teenager to death as another indicator of an evolving standard of decency in the USA. After all, this was the state selected by the country's Attorney General for its death penalty credentials. (12) In any event, the Supreme Court should take the very next opportunity to overturn Stanford and bring the USA into line with a standard of decency recognized around the world.

INTERNATIONAL SECRETARIAT, 1 EASTON STREET, LONDON WC1X 0DW, UNITED KINGDOM

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