In a dissent against the full court's refusal to hear a case, the four liberal justices said the execution of such prisoners "is a relic of the past and inconsistent with evolving standards of decency in a civilized society."
Three of the justices in the court's liberal bloc expressed that belief in a dissent last summer to such continuing U.S. executions, as governments from all over the world and the Vatican also protested.
The latest vote showed that the opposition has grown to all four justices of the liberal wing -- just one vote shy of a majority on the nine-member high court.
Monday's dissent came in the case of Kevin Nigel Stanford, who was convicted in 1981 of a murder committed in Kentucky when he was 17 years and 4 months old.
Stanford and an accomplice repeatedly raped and sodomized a 20-year-old woman during the robbery of a gas station where she worked. The men took her to a wooded area, and Stanford shot her point blank in the face, then in the back of the head, to prevent her from testifying against him.
Stanford's case first came to the Supreme Court in 1989. In the landmark decision Stanford vs. Kentucky, a narrow Supreme Court majority ruled the execution of death row inmates who killed before they were 18 was not then "cruel and unusual" punishment, banned by the Eighth Amendment to the Constitution.
More than a decade later, Stanford is still on Kentucky's death row and still fighting his execution.
Because federal law now prohibits repeated appeals to the federal courts, Stanford was not allowed to ask the Supreme Court for another review. Instead, he filed a petition asking the Supreme Court to consider the constitutional issues involved in his execution. Among other things, his lawyers questioned whether the execution of pre-18 killers violated "evolving standards of decency."
Only four justices need to vote for review of a case before the Supreme Court agrees to hear argument. Original constitutional review, however, requires five votes.
When Stanford's petition came up one vote shy, Justice John Paul Stevens issued an eloquent dissent Monday against the full court's refusal to take the case. Stevens was joined by Justices David Souter, Ruth Bader Ginsburg and Stephen Breyer.
The Supreme Court ruled last term in Atkins vs. Virginia that executing the mentally retarded is unconstitutional. The four liberals were joined by the court's two moderates, Justices Sandra Day O'Connor and Anthony Kennedy, to make up that 6-3 majority.
Stevens said Monday that before the Atkins ruling, 30 states prohibited the execution of the mentally retarded, while 28 banned the execution of pre-18 killers. The difference "does not justify disparate treatment of the two classes," Sevens wrote.
Those younger than 18 are not allowed to vote or be on juries, or enjoy any of the other responsibilities and privileges of adulthood, the justice said, because society considers their judgment unformed.
And, Stevens said, there is a growing national consensus against the execution of pre-18 killers.
"All of this leads me to conclude that offenses committed by juveniles under the age of 18 do not merit the death penalty," Stevens said. "The practice of executing such offenders is a relic of the past and is inconsistent with the evolving standards of decency in a civilized society. We should put an end to this shameful practice."
Breyer also issued a second dissent Monday, this one against the court's refusal to review the case of Charles Kenneth Foster, who has spent more than 27 years on Florida's death row.
Foster's confinement "from late youth to middle age" without execution comes from the state's repeated procedural errors as it tries to execute him, Breyer said.
"If executed, Foster, now 55, will have been punished both by death and also by more than a generation spent in death row's twilight," Breyer said. "It is fairly asked whether such punishment is both unusual and cruel."
Breyer's dissent evoked an opinion from conservative Justice Clarence Thomas agreeing with the full court's refusal of the case.
Long delays are simply part of the death penalty jurisprudence imposed by the courts, Thomas said.
Foster "could long ago have ended his 'anxieties and uncertainties' ... by submitting to what the people of Florida have deemed him to deserve: execution," Thomas said. "Moreover, this judgment would not have been made had (Foster) not slit Julian Lanier's throat, dragged him into the bushes, and then, when (Foster) realized that he could hear Lanier breathing, cut his spine."
(No. 01-10009, in re Kevin Nigel Stanford; No. 01-10868, Foster vs. Florida et al.)