Too young to die? There are 72 juvenile offenders on death row. The Supreme Court is set to decide whether executing them amounts to cruel and unusual punishment.

Last August, Robert Acuna, a high school student from Baytown, Tex., became the newest teenager on death row. Acuna was convicted of killing two elderly neighbors, James and Joyce Carroll, when he was 17, shooting them "execution style," as prosecutors described it, and stealing their car. At sentencing, when jurors weighed his crime against factors that might call for leniency, Acuna's youth should have counted in his favor.

Instead, his brooding and volatile adolescent demeanor may have hurt him more than it helped, and a Houston jury sentenced him to die. Renee Magee, who prosecuted Acuna, now 18, says his behavior at the trial alienated the jury. "He was very nonchalant," Magee says. "He laughed at inappropriate things. He still didn't quite get the magnitude of everything he did."

Acuna is the latest person to receive a death sentence for a crime committed before age 18. He could be the last.

In 2004, the U.S. Supreme Court agreed to consider the constitutionality of the juvenile death penalty. If the High Court prohibits the execution of 16- and 17-year-old offenders in a case involving Christopher Simmons of Missouri, the lives of Acuna and 71 other juvenile offenders on death row in 12 states will be spared.

A central issue before the Court, which is expected to rule on this case in the next few months, is whether the plummeting number of such death sentences (there were just two last year) lends weight to the argument that putting youths on death row amounts to cruel and unusual punishment, which is prohibited by the Constitution.

Supporters of the juvenile death penalty argue that the small number proves the system works and that juries are making discerning choices on whom to sentence to death, taking due account of the defendants' youth.

The Supreme Court in 1988 banned the execution of those under 16 at the time of their crimes. During arguments last fall on whether to move that categorical line to 18, Justice Antonin Scalia said the drop in juvenile death sentences was proof that juries could be trusted to sort through and weigh evidence about defendants' youth and culpability. "It doesn't surprise me that the death penalty for 16- to 18-year-olds is rarely imposed," Scalia said. "I would expect it would be. But it's a question of whether you leave it to the jury to evaluate the person's youth and take that into account or whether you adopt a hard rule."

CLOSE INSPECTION

Juries in capital cases involving juvenile offenders certainly place great weight on the defendants' youth. The defendants seldom testify, but jurors inspect them closely and draw conclusions from how they look and handle themselves in court. And the very same factors may cut both ways. Adolescent recklessness may suggest diminished responsibility to some and a terrible danger to others.

The youth of Christopher Simmons, the defendant whose case is now before the Supreme Court, was just such a double-edged sword. Simmons was 17 in 1993 when he and a friend robbed, bound, and gagged Shirley Crook, 46, in Missouri and pushed her into a river, where she drowned.

During Simmons's sentencing hearing, a Missouri prosecutor scoffed at the notion that Simmons's age should count as a mitigating factor in his favor. "Seventeen years old," the prosecutor, George McElroy, said. "Isn't that scary? Doesn't that scare you? Mitigating? Quite the contrary, I submit."

FIVE O'CLOCK SHADOW

Acuna had a tough-looking buzz cut at the time he killed the Carrolls, says their son, Tim Carroll. At the trial, he looked different. "He appeared as though someone had tried to make him look 8 years old all over again," Carroll says. "His hair was all combed down, almost in little bangs."

That did not sway Acuna's jury. But the youthful appearance of Lee Malvo, the teenager who participated in the sniper shootings in the Washington, D.C., area in 2002, may have saved his life. Malvo, who is short and slight, wore boyish, baggy sweaters most days. Although a Virginia jury convicted him of a killing he committed at 17, it voted against putting him to death.

But Malvo is growing older, and he still faces capital charges in other states. "They're talking about letting him grow a five o'clock shadow and then trying him in Alabama or Louisiana," says Victor L. Streib, a law professor at Ohio Northern University and an expert on the juvenile death penalty, referring to prosecutors in those states.

Beyond wrestling with the appearance of youth, juries often must also balance the brutality and recklessness of much juvenile crime against young people's immaturity.

Studies support the common view that adolescents tend to be reckless and do not calculate the risks and consequences of their actions as adults do. They are moodier, more susceptible to peer pressure, and do not have an acute sense of mortality. The law seems to recognize this, with most states using 18 as the dividing line between childhood and adulthood in many areas, including the ability to vote and to serve on a jury.

Carroll, the murdered couple's son, says a categorical rule made no sense in the context of the death penalty. "If you're going to make the argument that someone's cognitive reasoning is not developed at 17 years and 8 months but would be at 18," he says, "we should rethink whether they should be able to drive, and make split-second decisions in an 8,000-pound vehicle, or get married, or have children."

Carroll says Acuna's killings were sadistic. "The evidence given in the case very strongly indicates that he made my father kneel and shot him in the back of the head, execution style," Carroll says. "My mother, who could not walk without the help of a walker--this fellow shot her in the side of her face and blew her teeth out all over the kitchen floor."

If their youth can make teen defendants wilder and their crimes more odious, it can also trip them up when they start navigating the legal system. A study of the juvenile offenders on death row by The New York Times found that 56 percent confessed or gave incriminating statements to the authorities after their arrests.

FEWER DEATH SENTENCES

"Juveniles are more likely to be more compliant, more naive, and less likely to believe that police do not have their best interests in mind," says Steven A. Drizin, a professor of law at Northwestern University who has studied false confessions by juveniles.

Juries have in recent years been increasingly reluctant to sentence teens to death. In 2003 and 2004, only two juvenile offenders were sentenced to death in the U.S. The average annual number in the 1990s was slightly more than 10.

It can be hard to say, then, what made the crimes of Acuna and Eric Morgan, the only two juvenile offenders sentenced to die last year, worse than other murders committed by teenagers around the nation. Morgan was convicted of killing a convenience-store clerk in South Carolina during a robbery.

The jury that spared Malvo's life heard many days of testimony about his difficult childhood in Jamaica and about the influence that his surrogate father and accomplice, John A. Muhammad, wielded over him.

Acuna's lawyers had less to work with. "Robert wasn't on drugs, he wasn't abused, he wasn't mentally retarded or mentally ill," Acuna's mother, Barbara, says. She says it was hard to listen to the prosecutor's pleas for her son's death. "Here is my son that I love and that I protect with my life," she says. "And here's a person who stands up and says, 'I'm going to do everything that I can to legally kill him.'"

Juveniles and Death Row

Since 1976, 22 juvenile offenders have been executed. These graphs
refer to the 72 who remain on death row.

                      16 YEARS OLD    17 YEARS OLD

AGE AT TIME
OF THE CRIME                    14              58

                   18-29 YEARS OLD           30-39         40+

AGE NOW                         51              17           4

                             BLACK           WHITE    HISPANIC    ASIAN

RACE/ETHNICITY                  29              25          17        1

SOURCE: DEATH PENALTY INFORMATION CENTER

Note: Table made from bar graph.

TEACHING OBJECTIVES

To help students understand the social and constitutional questions in the debate over the death penalty for 16- and 17-year-old offenders.

BACKGROUND: Some studies suggest that teens' brains are not fully developed, and that teens may be too immature to fully understand the consequences of risky behavior or empathize with the feelings of others. (See Web Watch.)

BEFORE READING: Provide one student with a copy of the Bill of Rights and have him or her read the Eighth Amendment aloud.

Invite students to give their own definitions or examples of "cruel and unusual punishments" that might be prohibited under the Constitution.

Have students suggest reasons why the law might not regard the death penalty as cruel and unusual when applied to someone who committed a murder at age 30, but might when a 17-year-old commits the same crime.

ROLE-PLAY: Divide the class into four teams: police, defense attorneys, prosecutors, and jury.

The police provide the details of a murder committed by a 16-year-old. Prosecutors use that evidence to argue for the death penalty. The defense focuses on the defendant's age in seeking to avoid the death penalty. The jury votes on a sentence of death or life in prison, and explains its reasoning.

DISCUSSION QUESTIONS

* Do you agree with Supreme Court Justice Antonin Scalia that juries should be trusted to weigh evidence about defendants' youth and culpability?

* Opinion surveys find that while most Americans support the death penalty, fewer defendants who are convicted of murder are being sentenced to death. What do you think might account for this shift?

FAST FACT: In 2003 and 2004, a total of 17 death-row inmates were freed after evidence showed they were not guilty.

WEB WATCH: www.sciencenews.org /articles/20040508/bob9.asp A Science News article, "Teen Brains on Trial," reports on studies of teenage brains and presents pro and con arguments on capital punishment for teen offenders.

Adam Liptak is national legal correspondent for The Times. Toby Lyles, Tom Torok, and Margot Williams contributed.