Juvenile Offender in Mississippi

Case Overview

Case Summary

Ron Chris Foster, an African American, was 17 years of age at the time of his arrest for the June 10, 1989 murder of George Shelton, a convenience store cashier. Because Foster was a juvenile - under 18 years of age at the time of his crime - his execution would be contrary to American standards of justice, fairness, and decency as well as international law. In opposing his execution, we do not, in any way, seek either to excuse the crime or to minimize the pain and suffering it caused the family and friends of the victim.

The Trial

In the early morning of June 10, 1989, an attempted robbery took place at the Hankins Superette convenience store in Lowndes County, Mississippi. George Shelton, the store's cashier, refused to open the cash register and a struggle ensued with the robber. During the robbery, the robber gained control over a pistol which Shelton kept behind the counter for protection. Shelton was shot and killed.

After investigating the crime, officers arrested Foster for the capital murder of Shelton. Foster was ultimately indicted, tried, and convicted of this offense. Foster was seventeen years old when the crime was committed. A Lauderdale County jury imposed the death penalty and Foster was sentenced to die by lethal injection.

Mike Farrow, (Foster's trial attorney) requested a psychological examination of Foster. Farrow's motion for a psychiatric examination included a request for an examination to evaluate whether Foster met M'Naghten sanity standards as well as an evaluation of whether Foster exhibited any characteristics of a possible brain disorder that could perhaps serve as a mitigating factor in the sentencing phase.

In support of this motion, Farrow presented the affidavit of Foster's father. Which stated that Foster, throughout his life, had exhibited "strange and bizarre behavior leading us to question his sanity and emotional health and well being."

The Circuit Court Judge granted the motion for the purpose of determining whether Foster was competent to stand trial under M'Naghten, but delayed ruling on whether Foster should have a psychiatric examination for mitigation purposes until the results of the initial M'Naghten sanity examination could be obtained. During a motion for continuance, Farrow stated that he planned to call expert witnesses during the mitigation portion of the trial.

Nevertheless, the case proceeded to trial with no ruling on the motion for the appointment of a mental health expert for purposes of mitigation during the sentencing phase. Consequently, the only mitigating evidence introduced by Farrow at the sentencing phase of the trial was the testimony of Foster's parents, Steveson and Lillian Foster. Farrow offered little or no evidence to support the other mitigating factors favoring a life sentence rather than death.

Foster was seventeen years old on June 10, 1989, when he committed the crime. Foster's counsel, unaware of the law, failed to make a request to the circuit judge to transfer the case to youth court.

Foster Suffered Several Head Injuries as a Child, and Was Raised in Destructive Home Environment

Foster suffered two traumatic head injuries as a child. Once, when he was hit in the head with a baseball bat, and once, when he fell off of a motorcycle. Further, Foster's home life was one of chaos, his father being an alcoholic who would often hide bottles of whiskey under the house, for the children to find. When Foster was twelve, his older brothers taught him how to drink alcohol. According to records, Foster has an IQ of 80, dropping out of school after the eighth grade.

Executing Juvenile Offenders is Contrary to International Law

The execution of child offenders is in contravention of international law and fundamental standards of human rights. The ultimate goal of the international community is to abolish the death penalty under all circumstances, however, until that time there are restrictions on the categories of persons who can be executed, juveniles being one of the restricted categories. The prohibition of the execution of juveniles is referenced in a number of international treaties, declarations, and statements by international bodies, in addition to the laws of the majority of nations.

Juvenile Offenders: Issues of Mitigation

By their very nature, teenagers are less mature, and therefore less culpable than adults. Adolescence is a transitional period of life when cognitive abilities, emotions, judgment, impulse control, and identity are still developing. The IJP offers overviews on brain development and trauma as possible mitigation factors for juvenile offenders.

Briefs, Petitions, etc.

• Foster v. Mississippi – (June 19, 2003) Miss. Supreme Court orders mental competency hearing.

• Ron Chris Foster (Petition for Writ of Certiorari-USSC)

• Successive Petition to the Supreme Court of Mississippi

• Affidavit of Marc L. Zimmermann, PhD

News

• December 11, 2003 - Gov. not likely to alter sentence----Man convicted in 1989 killing may be ruled mentally retarded

• June 19, 2003 - Hearing ordered for Foster; State's high court reverses ruling on issue of inmate's competence

• February 13, 2003 - State Supreme Court denies mental retardation claim, says Foster can be executed

• January 6, 2003 - Musgrove grants reprieve to Foster

• December 11, 2002 - URGENT ACTION APPEAL

• December 10, 2002 - Mississippi execution date set for Foster

• December 2, 2002 - High Court Refuses Teen Death Row Case

• November 18, 2002 - Death row appeal based on Supreme Court ruling

Gov. not likely to alter sentence----Man convicted in 1989 killing may be ruled mentally retarded

Clarion-Ledger & Associated Press

December 11, 2003

Gov. Ronnie Musgrove isn't expected to commute before he leaves office the death sentence of a teen killer whose mental competency is being questioned, the governor's spokeswoman said.

Ronald Chris Foster's attorney, Silas McCharen of Jackson, said he may ask Musgrove to commute Foster's sentence to life in prison.

Musgrove delayed Foster's Jan. 8, 2003, execution until the courts could resolve questions about Foster's age and whether he is mentally retarded.

Foster was convicted of killing convenience store clerk George Shelton during a robbery in Lowndes County in 1989 when Foster was 17. He was sentenced to death in 1991.

"The governor doesn't have to do anything," Musgrove spokeswoman Lee Ann Mayo said. "The next governor can make the decision."

Musgrove has received several hundred requests for pardons, clemency and commutation of sentencing, Mayo said.

Gov. elect-Haley Barbour's spokesman Quinton Dickerson said Barbour supports the death penalty but has not discussed any specific cases.

The age issue was dealt with earlier this year when the U.S. Supreme Court said those who committed a crime at age 16 or 17 can be executed.

However, last year, the U.S. Supreme Court, in a Virginia case, said it is unconstitutional to execute the mentally retarded.

Prosecutors say Foster had a IQ above the threshold for mental retardation in 1990, but his attorneys say more sophisticated IQ testing last year determined Foster is mildly mentally retarded.

In June, the state Supreme Court, reversing an earlier ruling affirming Foster's death sentence, granted a mental competency hearing for Foster in Lowndes County Circuit Court. No date has been set for the hearing.

If the court decides Foster isn't mentally retarded, the attorney general's office could petition the state Supreme Court for another execution date.

It would then be up to Barbour to decide whether to lift the reprieve granted by Musgrove.

Musgrove grants reprieve to death row inmate

Associated Press

January 6, 2003

In Jackson, Gov. Ronnie Musgrove issued a temporary reprieve for death row inmate Ron Chris Foster, a spokesman said Monday.

Foster, 30, had been scheduled to be executed Wednesday at the Mississippi State Penitentiary in Parchman for the 1989 Lowndes County killing of convenience store clerk George Shelton.

Musgrove said the reprieve would last until the constitutional questions raised by Foster's lawyers concerning Foster's age and mental ability are addressed by the U.S. and Mississippi Supreme Courts.

Musgrove told The Associated Press in an interview earlier Monday he was weighing 2 factors in his decision on whether to halt Wednesday's execution - Foster's age and his mental ability.

Musgrove spokesman John Sewell said the reprieve would last until the state and federal Supreme Courts determine the constitutionality issues of Foster's case.

Musgrove said he was looking closely at whether the U.S. Supreme Court will take up another juvenile offender case from Oklahoma.

Foster was 17 when he killed a convenience store clerk in Lowndes County. Foster's lawyers and death penalty opponents have been waging a campaign to spare from execution individuals who were juveniles when their crimes were committed.

A recent appeal to the Mississippi Supreme Court also claims that Foster is mentally retarded.

"This is a very complex situation and there are 2 different issues," Musgrove said. "One is the execution of a juvenile, which has not been decided and potentially will be decided. The other is the execution of the mentally retarded. Now the question is, has Chris Foster been given the opportunity to present that in his sentencing phase as to whether he is in fact mentally retarded."

Last fall, defense lawyer Silas McCharen unsuccessfully petitioned the U.S. Supreme Court to decide on the constitutionality of executing juvenile offenders.

Foster's execution was to be Mississippi's 3rd since July. Before that, the state had gone 13 years without an execution.

Hearing ordered for Foster; State's high court reverses ruling on issue of inmate's competence

Clarion-Ledger

Death row inmate Ronald Chris Foster should have a mental competency hearing, the state Supreme Court said Thursday in reversing its earlier ruling that affirmed Foster's death sentence.

Lawyers for the 31-year-old inmate have long argued that he should not be put to death because he is mentally retarded.

"If the court had not granted Ron Chris Foster an evidentiary hearing on the issue of whether he is legally mentally retarded, the court could have set another execution," said one of Foster's lawyers, Silas McCharen of Jackson.

Gov. Ronnie Musgrove granted Foster a reprieve shortly before a Jan. 8 execution date, citing age and mental retardation issues raised by Foster's lawyers.

In a split decision in February, the state Supreme Court denied Foster's claims. But his attorneys questioned whether the 4-4 decision affirmed Foster's death sentence and asked for a rehearing.

The court grants rehearings in few cases. In 2002, the court granted just 14 of 132 requests for rehearings.

Foster was convicted of killing convenience store clerk George Shelton during a robbery at Hankins Superette in Lowndes County on June 10, 1989, when he was 17. He was sentenced to death in 1991.

His attorneys also have argued that he should not be put to death because he was a juvenile when he committed the crime.

However, in Thursday's 6-1 decision, justices said, "This issue is without merit." The U.S. Supreme Court has rejected the argument that those who committed a crime at age 16 or 17 should not be executed.

The state's high court sent the case back to a Lowndes County circuit judge to hold the mental competency hearing.

Justice Bill Waller Jr., writing for the court, said the trial judge must follow the guidelines set by the U.S. Supreme Court in a Virginia case regarding a death row convict and his mental capacity. The court ruled last year in the case that it is unconstitutional to execute the mentally retarded.

Waller said the judge must abide by the definition of mental retardation under the American Psychiatric Association's standard, which states a person with an IQ of 70 or below is considered mentally retarded.

Prosecutors argued Foster was given an IQ test at the Mississippi State Hospital at Whitfield on which he scored an 80. However, "the source of this IQ is a mystery, as it cannot be found in Foster's appeal record," Waller wrote.

The only IQ test on record is one given last year as part of a psychological evaluation. Foster scored a 62 on that test.

In a lone dissent, Justice Jim Smith said no proof has been provided to support Foster's claim of mental retardation and he deserved no hearing.

Justices Chuck McRae and Justice Chuck Easley did not participate in Thursday's ruling.

Assistant Attorney General Sonny White Jr., who has argued that Foster's IQ is 80, said he was not concerned about Thursday's development. But he said, "I was glad something had been done to move the case on, to find a resolution, whatever it is."

McCharen said the state Supreme Court's ruling is the first positive news since Musgrove's reprieve. "Now this ruling makes me at least cautiously optimistic that Chris will not be ever put to death in the state of Mississippi," he said.

State Supreme Court denies mental retardation claim, says Foster can be executed

February 13, 2003

JACKSON, Miss. (AP) - The Mississippi Supreme Court ruled Thursday that condemned murderer Ronald Chris Foster can be executed, saying he did not prove he is mentally retarded.

The next step is for the Mississippi Attorney General's office to formally request an execution date.

The Supreme Court, in an order agreed to by four justices and opposed by four others, threw out Foster's motion to block his execution on grounds that he could prove he is mentally retarded and because he was a juvenile when the murder was committed.

Foster, now 30, was 17 when he killed George Shelton, a Lowndes County convenience store clerk.

Gov. Ronnie Musgrove had granted Foster a reprieve on Jan. 6 while the Mississippi Supreme Court considered his mental retardation claim and the U.S. Supreme Court reviewed another case involving a juvenile offender.

Foster's lawyers had argued it was unconstitutional to execute a juvenile offender. They also said Foster is mentally retarded.

The U.S. Supreme Court last year ruled it unconstitutional to execute the mentally retarded.

Presiding Justice Jim Smith said the U.S. Supreme Court has barred the execution of defendants who committed crimes at 15, not 16 or 17.

Smith said the justices would not adopt any other restriction sought by Foster.

Justice Kay Cobb, joined by three other justices, said there is a lack of evidence regarding Foster's mental state and the condemned inmate deserved a hearing to prove himself mentally retarded.

Cobb said while some would argue Foster had waited until the 11th hour to raise his appeal, the nation's high court had only ruled against executing the mentally retarded in June 2002.

Mississippi: Urgent Action Appeal

11 December 2002
EXTRA 91/02 Death penalty / Legal concern
USA (Mississippi)
Ron Chris Foster

Chris Foster (m), black, aged 30, is scheduled to be executed in Mississippi on 8 January 2003, on his 31st birthday. He was sentenced to death in 1991 for the murder of George Shelton, white, who was shot on 10 June 1989 during a robbery at the shop where he worked. Chris Foster was 17 years old at the time of the murder. International law, respected by almost every country in the world apart from the USA, prohibits the use of the death penalty against people who were under 18 at the time of the crime.

No expert testimony was presented at Chris Foster's sentencing, either about the mitigating effects of his age, the fact that he had suffered at least two serious head injuries between the ages of 12 and 14, or on evidence that he had exhibited bizarre behavior throughout his life, which had led his family to question his sanity and emotional well-being. The only defense witnesses were his parents, whose testimony, including cross-examination, extends to fewer than 22 pages of a 1,211 page trial transcript.

Their testimony was largely a plea for their son's life. Where it went beyond that, it was unsubstantiated or tended to undermine the defense lawyer's own argument for leniency. For example, the lawyer urged the jury to find that Chris Foster's limited intelligence was a mitigating factor. However, the father testified that his son was a good student who achieved good grades. In fact, Chris Foster had dropped out of school by the age of 15, and his grades were poor.

In addition, his IQ was assessed at 80 before the trial, which the jury did not know. The lawyer also argued for leniency on the grounds Chris Foster had been drunk at the time of the murder, having consumed 12 beers. He failed to bolster this with evidence of his client's history of childhood alcohol abuse. His brother, sister, friends, and a neighbour later stated that they if they had been asked to testify, they could have told the jury about Chris Foster's experience of growing up with a father who was an "habitual drunkard", or that the boy, given alcohol by his older brothers, had began drinking at around the age of 12. What the jury heard was the parents testifying that they were unaware of their son's history of alcohol abuse.

BACKGROUND INFORMATION

The use of the death penalty against child offenders, people who were under 18 at the time of the crime, is prohibited under international law. The Geneva Conventions, the International Covenant on Civil and Political Rights (ICCPR), the Convention on the Rights of the Child (CRC), the American Convention on Human Rights and the United Nations Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty, all have provisions exempting this age group from the death penalty. The prohibition stems from the widespread recognition of the immaturity and impulsiveness of young people and their capacity for growth and change.

Under the 1989 US Supreme Court decision, Stanford v Kentucky, defendants who were 16 or 17 at the time of the crime can be subject to the death penalty in the USA. Since that decision, 191 countries have ratified the CRC. The USA has not ratified it. The USA ratified the ICCPR in 1992, but filed a "reservation" purporting to allow it to execute child offenders. The Human Rights Committee, the expert body established by the ICCPR to oversee the treaty's implementation, has said that the reservation is "incompatible with the object and purpose of the Covenant" and should be withdrawn. The Committee has confirmed that the ICCPR prohibition on the execution of child offenders is a principle from which there can be no derogation.

On 22 October 2002, the Inter-American Commission on Human Rights found that "a norm of international customary law has emerged prohibiting the execution of offenders under the age of 18 at the time of their crime. Moreover, the Commission is satisfied... that this rule has been recognized as being of a sufficiently indelible nature to now constitute a norm of jus cogens... [N]early every nation state has rejected the imposition of capital punishment to individuals under the age of 18... The acceptance of this norm crosses political and ideological boundaries and efforts to detract from this standard have been vigorously condemned by members of the international community as impermissible under contemporary human rights standards... [T]he Commission considers that the United States is bound by a norm of jus cogens not to impose capital punishment on individuals who committed their crimes when they had not yet reached 18 years of age. As a jus cogens norm, this proscription binds the community of States, including the United States. The norm cannot be validly derogated from, whether by treaty or by the objection of a state...".

Since 1990, the USA has executed 18 child offenders, compared to 14 such executions reported in the rest of the world combined. These 14 occurred in Democratic Republic of Congo (DRC), Iran, Nigeria, Pakistan, Saudi Arabia, and Yemen. Yemen and Pakistan have now abolished such use of the death penalty in law. In 2001, the DRC authorities commuted the death sentences of five child offenders. China, the world's main executing state, abolished the death penalty against child offenders in 1997.

In September, Amnesty International issued USA: Indecent and internationally illegal: The death penalty against child offenders (AMR 51/143/2002). The report argued that the US Supreme Court should reconsider its Stanford v Kentucky decision in light of its June 2002 ruling, Atkins v Virginia. In Atkins, the Court found the death penalty against people with mental retardation unconstitutional in the light of "evolving standards of decency". However, in October 2002, the Court refused to take the appeal of Kevin Stanford, whose case was at the centre of the Stanford v Kentucky decision and who remains on death row for a crime committed at the age of 17. Four of the nine Supreme Court Justices dissented from the denial of the appeal: "There are no valid procedural objections to our reconsideration of the issue now, and, given our recent decision in Atkins v Virginia, we certainly should do so." The dissent continued that the execution of people for crimes committed when they were under 18 years old "is a relic of the past and is inconsistent with evolving standards of decency in a civilized society. We should put an end to this shameful practice."

Mississippi execution date set for Foster

Timothy R. Brown - Associated Press

Dec. 10, 2002

JACKSON, Miss. - Ron Chris Foster, convicted at age 17 in the death of a Lowndes County convenience store clerk, is scheduled for execution on Jan. 8.

The Mississippi Supreme Court set the date Tuesday, one day before the planned execution of Jessie D. Williams.

Williams, who was convicted in 1983 of slashing the throat of 18-year-old Karon Ann Pierce, is scheduled to die by lethal injection Wednesday at the Mississippi State Penitentiary.

Foster was convicted of killing George Shelton, a worker at Hankins Superette in Lowndes County, on June 10, 1989. Shelton's body was found behind the counter by a customer who contacted authorities. He had been shot in the head.

Foster has claimed in his appeals that it is cruel and unusual punishment to execute those who committed crimes when they were under the age 18. Foster petitioned the U.S. Supreme Court to stay his execution using that argument.

Last week, the petition was denied.

Foster's attorney, Silas McCharen, said the U.S. Supreme Court is deciding whether to take up another case questioning the constitutionality of executing juvenile offenders, so a date should not have been set for Foster death until that case is resolved.

Marvin White, an assistant attorney general in Mississippi, said there are plenty of cases that question executing juvenile offenders, so there is no reason to hold up Foster's execution because of one more.

"I'm sure that question is going to be raised by many people over the next year, but precedent was established by the ... (U.S.) Supreme Court in 1989 and was reaffirmed just at the beginning of this term," White said.

"So until they take the case up again and change the precedent, that is the precedent of the United States and the law," he said.

State law requires the Mississippi Supreme Court to set an execution date not more than 30 days from a federal court's denial.

Justice Jim Smith signed the state high court order, which states "that no legal impediment exists to deter the resetting of an execution date."

McCharen said Foster had the mental maturity of a 13-year-old when he was convicted of the crime. He said Foster rode his bike to the store and had no weapon. The clerk was shot with a gun that was kept at the store, McCharen said.

The attorney said the court should either bar executions of people under 18 or require lower courts to first consider defendants' maturity and culpability before allowing the death penalty.

McCharen couldn't be reached for comment Tuesday.

States may impose the death penalty on killers who were 16 or 17 at the time of their crimes. Of the 38 states that allow the death penalty, 16 prohibit it for those under 18.

White said that while he didn't expect additional delays in Foster's execution, "we just have to wait and see."

High Court Refuses Teen Death Row Case

By The Associated Press

December 2, 2002

WASHINGTON (AP) -- The Supreme Court rejected an appeal Monday from a Mississippi death row inmate who was 17 when he used his bike as a getaway vehicle in a fatal convenience store robbery.

Lawyers for Ron Chris Foster wanted the court to use the case to decide if it is unconstitutional for states to execute juvenile defendants. Four justices said this fall that the court should ban the practice.

"Whether it is constitutional to execute a 17-year-old is not properly before the court in this case," justices were told in court papers by Marvin White, a Mississippi assistant attorney general.

Foster was convicted in the 1989 death of a convenience store clerk during a robbery.

One of Foster's attorneys, Silas McCharen, said that Foster had the mental maturity of a 13-year-old. Foster rode his bike to the store that day, he said. He had no weapon, but the clerk was shot with a gun that was kept at the store.

McCharen said the court should either bar executions of people under 18 or require lower courts to first consider defendants' maturity and culpability before allowing the death penalty.

States may impose the death penalty on killers who were 16 or 17 at the time of their crimes. Of the 38 states that allow the death penalty, 16 prohibit it for those under 18.

"Now is the time for this court to acknowledge that our national standards of decency no longer permit the execution of juvenile offenders anywhere in the United States," McCharen wrote in a court filing.

The case is Foster v. Johnson, 02-6655.

Death row appeal based on Supreme Court ruling

Inmate argues it is unconstitutional to execute juveniles

By Matt Volz - The Associated Press

November 18, 2002

Months after ruling against the execution of mentally retarded prisoners, the U.S. Supreme Court could take up the case of a Mississippi inmate raising another constitutional debate: Should juvenile offenders be executed?

In June, the court ruled it was cruel and unusual punishment to execute the mentally retarded in the case of Virginia death row inmate Daryl Atkins.

Now, Ron Chris Foster, an inmate at Mississippi State Penitentiary in Parchman, hopes the court will listen to his argument — that it is cruel and unusual punishment to execute those who committed their crimes when they were under age 18.

Foster has been on Parchman's death row since 1991 for killing a store clerk when he was 17.

Foster's argument is that juveniles are like the mentally retarded in that they are not able to understand, reason or control their impulses as well as mature adults, according to Silas McCharen, Foster's attorney. While juvenile offenders should be punished for their crimes, it is cruel to put them to death, McCharen said.

"We're making a lot of the same arguments," McCharen said. "We're fairly confident that this will be granted."

The Supreme Court will look at the case in a Nov. 27 conference, after which it will announce whether it will take up the matter.

Marvin White, the Mississippi assistant attorney general arguing the case for the state, said because Foster did not bring up the issue during proceedings in the lower courts, it should be barred from his case.

"They just raised it out of the blue," White said.

Foster was convicted of killing George Shelton, a worker at Hankins Superette in Lowndes County, on June 10, 1989. Shelton's body was found behind the counter by a customer who contacted authorities. He had been shot in the head.

Foster was denied claims of ineffective counsel by a federal district court in Jackson and the 5th U.S. Circuit Court of Appeals in New Orleans. The Mississippi Supreme Court has also rejected similar arguments.

Now Foster is taking a different route, seeing the Atkins ruling as an opportunity to raise a constitutionality issue.

For years, the U.S. Supreme Court has supported the notion that juvenile offenders 16 and older are eligible for the death penalty, said Don Cabana, an associate professor of criminal justice at the University of Southern Mississippi. Cabana is also a former warden at Parchman and former commissioner of corrections for Mississippi.

"What this case is asking the court to do is to re-examine it and then reverse themselves, and that's never an easy task," said Cabana. "But it's one certainly worthy of re-examination."

In a 5-4 vote last month, the Supreme Court rejected an appeal request with a similar claim. White said this shows the court would be reluctant to take up the issue again.

Morton Sklar, executive director of the World Organization Against Torture, disagreed. Foster only needs four votes for the court to take the case, and if last month's dissenting justices — John Paul Stevens, David Souter, Ruth Bader Ginsberg and Stephen Breyer — think they have Justice Sandra Day O'Connor as a swing vote, they are likely to take the case, Sklar said.

Sklar filed a brief with the Supreme Court in support of Foster. He said America is one of the few countries that still allows juvenile-offender executions.

Sklar and McCharen say they are optimistic the court will hear the case because the dissenting justices have said the reasoning behind their ruling on the mentally retarded can apply to juvenile offenders.

"The reasons supporting that holding, with one exception, apply with equal or greater force to the execution of juvenile offenders," Stevens wrote in last month's dissent.

The exception Stevens referred to was the fewer number of states that outlaw the execution of juvenile offenders — 28 — than the number forbidding the execution of the mentally retarded — 30.

This shows less of a consensus for banning juvenile executions than there is for executing the mentally retarded. But, Stevens wrote, that "does not justify disparate treatment of the two classes."

Some doubt the Foster case will provide the precedent to end juvenile-offender executions. Linking the mental retardation ruling to juvenile offenders is a stretch, Cabana said.

"It just strikes me that those are two very different issues, although I can understand where attorneys would certainly want to argue that," Cabana said.

Some advocacy groups think the timing might be wrong to take the issue to the Supreme Court, Sklar said. Those groups wanted more states to ban juvenile-offender executions to better show a consensus.

But Sklar said with the Republican election victory earlier this month, and the risk that future federal court nominees will be conservative, this may be the best chance.

"There's more risk that the next Supreme Court nominations will be more conservative one, which will make it harder to deal with these death-penalty issues," Sklar said.

Ronald Chris Foster