Legal but Wrong

FAIRFAX COUNTY CIRCUIT Judge Jane Marum Roush batted back arguments this week by lawyers for Lee Boyd Malvo that international law precludes the accused sniper from facing capital punishment because of his youth at the time of crime. The judge's ruling was correct. Mr. Malvo's lawyers had argued -- in what has become a ritual in capital cases involving defendants accused of committing crimes before turning 18 -- that a combination of international treaties and the custom of nations renders the practice illegal. This argument is rejected just as routinely as it is presented, and for good reason: The Senate, in ratifying treaties, has always reserved space for the American death penalty, and legislatures around the world govern their own populations, not Virginia's. That many Europeans react with horror to Virginia's law and that other nations agree among themselves not to have similar laws does not render Virginia's statute inapplicable. International opinion cannot change the unfortunate fact that the Supreme Court has said the juvenile death penalty comports with the Constitution.

But legality does not render Virginia's policy any less abhorrent. Virginia's juvenile death penalty should not be abolished by a judge because the French object to it. But we hope that someday soon it will be abolished by the General Assembly because Virginians object to it -- and in that regard, international opinion is one factor worthy of consideration.

Mr. Malvo is not an appealing defendant on whose behalf to argue for a change. His alleged crimes were unusually horrible, and he was approaching adulthood when they were committed. But whatever one thinks of capital punishment, it ought not be applied to children, whose personalities and capacities for judgment are not yet fully formed. Government takes on, in general, a protective role with respect to children -- one that sometimes restricts their liberty and the liberty of adults in dealing with them, by way of keeping them safe. It is an abdication of that protective role for state governments, even in prosecuting terrible crimes, to respond to youth crime by seeking execution. To sentence someone to die for a crime committed as a child, one has to believe that -- in the long natural life the defendant would otherwise have before him -- meaningful change and some measure of redemption are either impossible or unimportant. There are good reasons why the rest of the world has rejected executions of children -- reasons to which the public, not the courts, ought to pay attention.