Matthew Norman: My appeal to the US Supreme Court

Only five nations execute juvenile offenders: the US, China, Pakistan, Congo and cuddly old Iran

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The world of the Porchester Spa Turkish baths, in the louche London quarter of Bayswater, would come as quite a shock to any
Independent reader who stumbled innocently upon it. I cannot speak for women's days, but the cast of diamond geezers who gather in the steam on Mondays, Wednesdays and Saturdays to engage in the old Russian-Jewish practice of "schmeissing" (beating one another with a raffia brush) share views seldom given a run out on these pages.

The world of the Porchester Spa Turkish baths, in the louche London quarter of Bayswater, would come as quite a shock to any Independent reader who stumbled innocently upon it. I cannot speak for women's days, but the cast of diamond geezers who gather in the steam on Mondays, Wednesdays and Saturdays to engage in the old Russian-Jewish practice of "schmeissing" (beating one another with a raffia brush) share views seldom given a run out on these pages.

Their thoughts on homosexuality, for example, generally delivered while whipping the soapy buttocks of a prostrate chum, make Rocco Buttiglione sound like Peter Tatchell. As for law and order - a subject in which they have that special insight unique to erstwhile house guests of Her Majesty - again they tend towards the draconian.

"Hanging's too good for 'em" doesn't cover it. Injecting 'em with rabies and feeding 'em to alligators verges on the bleeding heart liberal side of penal opinion for the schmeissers of the Porchester Spa.

Given all this, it came as a bit of shock to me, a while back, to get chatting in the back steam-room to a man preparing to address the United States Supreme Court as to why America should cease executing juvenile offenders.

Philip Sapsford QC co-authored, with barrister Hugh Southey, the Human Rights Committee of the Bar of England and Wales's brief in "Donald P Roper, superintendent of a Missouri 'correctional centre' v Christo- pher Simmons". Simmons was 17 in 1993 when involved in a burglary that ended with him drowning a woman whom he and his 15-year-old accomplice feared had recognised them.

In August, Missouri's top court overturned his death sentence, on the grounds that execution for a crime committed at 16 or 17 years old violates the ban in the Eighth Amendment to the US Constitution on "cruel and unusual punishment". Missouri has appealed, and the Supreme Court heard the case a fortnight ago. Their decision isn't expected until January, but when I report that the nine justices are known to be split down the middle, you will sense not merely a strong echo from the recent past but also, perhaps, an omen of the near future.

It is four years, needless to remind you, since these same nine jurisprudential titans handed the White House to George Bush, by five votes to four, on grounds the cynical suspect were more political than strictly legal. Today, both parties have hundreds of lawyers strategically placed in the three major swing states - Florida, Ohio and Pennsylvania - lest the immediate future of America, and indeed the planet, must again be resolved in the courts rather than the ballot boxes.

At this point, honesty demands a note of caution. Those tempted to rely on any legal analysis to follow should know that the margin by which I failed the Solicitors' Final Examination in 1987 remains, so far as I'm aware, the widest in Law Society history. Even so, reading Mr Sapsford's brief to the Supreme Court - before whom he pressed the same case as Mikhail Gorbachev, Jimmy Carter, a dozen other Nobel Prize winners, the 25 European Union members, 13 other countries, many former US ambassadors, the American Medical Association and organisations of the families of murder victims - the issue does look very plain.

Prima facie, as we used to say in law school, the crux of the matter is this: does America wish to be part of the civilised international community, or would it rather cleave to the path of arrogant isolationism beloved of the man who came to power in what Michael Moore so playfully insists was a Supreme Court-ratified coup d'état? Only five nations have executed juvenile offenders in recent years, the US standing proudly alongside such champions of human rights as China, Pakistan, the Congo and cuddly old Iran. It was (formally, at least) beyond the pale in Saddam's Iraq and in the third point of the axis of evil, North Korea. So whether or not we believe it cruel to kill someone for a crime committed at an age when medical evidence insists the mind is unformed and hugely volatile, it would certainly seem unusual.

Already, I sense a communal groan among readers wondering if it is absolutely necessary to affect such a pompous, faux-judicious tone - "whether or not we believe it cruel" forsooth! - about something so monumentally clear cut. Isn't it simply disgusting that such barbarism endures anywhere on earth, let alone in the ultra-pious democracy led by one who not long ago famously lectured the United Nations about human rights? To minds like ours, the death penalty is gut-wrenchingly vile in any form, let alone that favoured in the States, where people are held in cages for decades, forever taunted and tormented by appeal after appeal until the day the Governor declines to commute the sentence, and they're dragged off at midnight to breathe their last in front of a specially invited audience and the television cameras.

So of course it is preposterous that nine brilliant legal minds should be struggling to come to a majority verdict on something as bleedin' obvious as abolishing a practice shunned by all but a few of the world's nastiest dictatorships.

From the transcripts of oral questions in Roper v Simmons, it's clear that a chunk of the Supreme Court agrees. Justice Kennedy, seen as the potential swing voter, asked rhetorically if the rest of the world shouldn't influence America. Referring to the great 18th-century British jurist William Blackstone, Kennedy's fellow liberal Ruth Bader Ginsburg said: "Did he not also say that to lead the world we would have to show a decent respect for the opinions of mankind?" On the other hand, Justice Scalia (Genghis Khan without the jokes) butted in - with what Latin teachers know as a question demanding the answer no - to enquire: "should we yield ourselves to the rest of the world?" That same Scalia rather chillingly added: "We punish people for what they were, not what they are". For him, the quality of mercy is strained indeed, as it is for at least three of his colleagues. This vote, to borrow a cliché from the slightly larger one due next Tuesday, is much too close to call.

It could even be a score draw. William Rehnquist, the 80-year-old Nixon-appointed Chief Justice and one of the quintet who gifted the White House to Mr Bush, has just been diagnosed with thyroid cancer, and if he is too sick to give his judgment the result might be tied at 4-4. In the context of state execution, there would be something ghoulishly apt about a hung vote, just as there is a mild irony in the Supreme Court's leader having to consider this matter while perhaps facing a death penalty of his own.

Considering the calamitous results of his casting vote to halt the Florida recount in 2000, some will struggle to give much of a damn about that. Yet those of us who disagree with Scalia, and believe in the possibility of penitence and redemption, will wish him well. Whether or not he is to be offered a second crack at allocating the presidency, Chief Justice Rehnquist has a glorious chance to do a little to reunite America with the civilised world it purports to lead.

Even the law-and-order hardliners among the schmeissing boys of the Porchester baths will surely hope he is well enough to take it.

m.norman@independent.co.uk

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