Commentary: Kramer vs... Death-defying deliberations

As they grappled with the finer distinctions of capital murder, the jury members in the case of Lee Boyd Malvo sent several questions to the judge. While the judge didn't really answer them, maybe she should have sent a few questions of her own:

What is taking so long?

Can't you guys work a little faster?

Do we really have to carry this case into the Christmas holiday???

Considering a recorded confession in which the teenager laughed about his bloody game of sharpshooting, many wonder why this jury took so long on the technicalities of capital murder. Now, these slow pokes have sent the case into a penalty phase, and an even longer process of deciding the ultimate fate of a youth who destroyed the lives of 10 people before reaching the age of 18.

Of course, the 12 Malvo jurors aren't the only ones having trouble reaching a unanimous decision on what to do with juvenile killers. While this jury's first round of deliberations took 13 hours, the United States Supreme Court has been debating this issue for more than 13 years. And, despite many rounds of deliberations, the nine justices still can't reach a unanimous decision.

Fourteen years ago, the Supreme Court considered the fate of another teen sentenced to death for murder. Although 17-year old Kevin Nigel Stanford convinced four justices that the juvenile death penalty violated the Constitution's ban on cruel and unusual punishment, he lost his challenge - and nearly lost his life - by a single vote.

While five justices found nothing unusual or cruel in sentencing teenagers to die, the minority thought that 18 is the dividing line that society has generally drawn, the point at which it is thought reasonable to assume that persons have an ability to make, and a duty to bear responsibility for their, judgments. Admitting that one's 18th birthday is a necessarily arbitrary cutoff, these four justices believed that murderers of more tender years lack that degree of blameworthiness and culpability required for such harsh punishment.

Though the majority rejected pleas to spare Stanford's life, he managed to live another 13 years as his lawyers persisted in these legal battles. In the midst of the sniper shootings, Stanford asked the court to give him a second chance and hear his constitutional pleas. While five justices refused, four voted to take the case and to consider new neuroscientific evidence, which revealed that adolescent brains are not fully developed, which often leads to erratic behaviors.

Once again, Stanford lost his battle by a single vote and by the fine print of the habeas corpus statute. Though four votes are usually enough for the court to take a case, Stanford needed five votes to maintain his habeas corpus petition.

Though the court refused to spare his life, an 11th hour call from the governor saved Stanford from the executioner. Other juvenile killers were not as fortunate. As his executioner drew near, Scott Allen Hain fought the death penalty for a murder that he also committed at the age of 17. Needing the same four votes to press his challenge to the Supreme Court, his lawyers confidently sought review.

Yet, as the public clamored for the death penalty in Malvo's case, these same four justices remained silent in Hain's. As Virginia prepared to prosecute Malvo, Hain was executed on April 3.

Far from deliberating on the merits of the juvenile death penalty, the Supreme Court's decisions have boiled down to votes, technicalities and timing. Considering the gravity of their decision, one would hope that Malvo's jurors exercise the courage to vote their conscience, regardless of the timing - or timeliness - of their deliberations.

Irwin R. Kramer is a trial lawyer and managing partner of Kramer & Connolly, an AV-rated litigation firm trying cases throughout Maryland and Washington, D.C., and offering legal courses at www.KramersLaw.com..

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