By Bill Mears
CNN Washington Bureau
WASHINGTON (CNN) --Scott Allen Hain's lawyers and death penalty opponents had
hoped to use him as a legal test case in the dispute over whether executing
people who were under 18 when they committed murder should be constitutionally
banned as "cruel and unusual punishment."
That hope was extinguished earlier this week when the Supreme Court refused to hear Hain's appeal. The court turned down the appeal Monday.
In the appeal, attorney Steven Presson argued, "Every consideration of humanity and justice demand that Scott Hain's constitutional rights be given effect."
Hain, now 32, was sentenced to death for the double murder of a young couple who had been stuffed in the trunk of a car that was set on fire. An older co-defendant also was sentenced to death.
A year after the high court ruled 6-3 that executing the mentally retarded was unconstitutional, the issue of executing those who were minors at the time of their crimes has become the new focal point of the ongoing, often divisive, death penalty debate.
Advocates on both sides of the issue said the majority of the Supreme Court is not yet ready to revisit the issue.
"What's needed is some growing evidence from the states that they want to ban executing minors," said Richard Dieter from the Death Penalty Information Center. "More state governors and legislatures have to weigh in. They need some momentum in the next year or two for the justices to say, now is the time to decide this."
Most oppose executing minors, poll shows
When justices debated the mental retardation question last year, a 6-3 majority
concluded a "national consensus" had developed in the states against
the practice. Joining the majority were moderate conservative justices Sandra
Day O'Connor and Anthony Kennedy, who have traditionally upheld the death penalty.
Recent CNN/USA Today/Gallup polls found 64 percent support the death penalty, but 69 percent of Americans oppose executing juveniles.
Sixteen of the 38 states that permit the death penalty ban it for those who were under age 18 at the time of their crimes. Several state legislatures -- including Texas, Florida, Wyoming, Missouri, Mississippi and Pennsylvania -- are debating bills to enact such bans.
Death penalty supporters argue juries rarely vote to execute such people, and then only for the most heinous of crimes. Death Penalty Information Center figures show 21 people who killed while juveniles have been executed since capital punishment was reinstated in 1976.
"Juries recognize, in some cases, that those under 18 are not the children we might want to believe they are," said Joshua Marquis, a longtime prosecutor in Astoria, Oregon, and a member of the board of directors of the National District Attorneys Association. "They don't benefit from the juvenile justice system, and can be held fully responsible for their actions."
High court divided on issue
The Supreme Court is sharply divided on the issue. Four justices-- John Paul
Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer-- oppose the practice
and last October released an unusual and harsh condemnation, calling it "shameful."
"The practice of executing such offenders is a relic of the past and is inconsistent with evolving standards of decency in a civilized society," Stevens wrote.
But the other five, mostly conservative justices, either disagree or are unwilling to debate the issue. Some death penalty supporters say that may be a good thing in the short term.
"It would be counterproductive to force the issue, then have a 5-4 vote that juveniles can be executed," Dieter said. "The issue then may not be revisited for a long time. It may be a better thing for the issue to percolate, for states to ban executing minors on their own, instead of being forced to by the courts."
He added, "We need to reinforce the idea that banning the death penalty for juveniles doesn't mean they're not taking responsibility, or not being punished. Life in prison without parole is an adult sentence."
The issue has taken on renewed attention because of the recent sniper shootings in the Washington, D.C. area, and elsewhere that left 13 people dead and six wounded. One of the accused is Lee Boyd Malvo, 17. He is being tried as an adult in suburban Virginia, and faces the death penalty if convicted.
Hours after the Supreme Court refused to intervened, Oklahoma Attorney General Drew Edmondson Monday ordered an execution date be set for Hain and another convicted killer, while ruling out DNA testing.
"I see nothing that should stand in the way of these executions being carried out," Edmondson said.
The case is Hain v. Mullin, No. 02-6438.
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