[Deathpenalty]death penalty news----USA
rhalperi at mail.smu.edu
Thu Mar 3 10:41:02 CST 2005
Now on to all executions
Since 1990, 8 nations have executed juveniles. Before this week, 7 of the
8 - Iran, Pakistan, Saudi Arabia, Yemen, Nigeria, China and Congo - had
abandoned the barbaric practice. With Tuesdays ruling by the Supreme Court
to bar the execution of persons younger than 18, the United States, the
last holdout on that infamous list, can say it has caught up to the rest
of the world.
Sure, the vote was only 5-4, but that still counts on the highest court in
the land. The 5 justices upheld a Missouri case that ruled it is "cruel
and unusual punishment" to execute juveniles.
The ruling takes 72 inmates off death row. In that figure are 14 from
Alabama, who will all likely serve out life sentences.
The rulings greatest impact is in the South, where execution of juveniles
is most widely accepted. Alabama Attorney General Troy King had filed a
"friend of court" brief that turned out to be on the wrong side of the
Whole volumes could be - and have been - written on why this region
remains so out of step with the rest of the nation. Compare the map in
Wednesday's Star displaying states where the most juveniles were sentenced
to death to maps illustrating poverty or lack of education or a host of
other social ills, and a troubling pattern emerges. The same set of
Southern states lags behind in most of the bad categories. Are these facts
related or is there something deeper that binds these embarrassing
realities together? Who can say for sure? What is known is that social
indicators such as poverty and lack of education play a role in crime
rates. Fix those conditions and the need for capital cases might very well
The Supreme Court majoritys examination of national and international
trends abandoning juvenile executions angered the dissenters on the court.
Despite the bluster from Justice Antonin Scalia, the founders did not
discourage the Supreme Court from looking outside the shores of the United
States in making rulings. Writing in a 2003 essay in The Star, Justice
Sandra Day OConnor wrote, "conclusions reached by other countries and by
the international community, although not formally binding upon our
decisions, should at times constitute persuasive authority in American
Scalia, writing in Tuesdays dissent of Roper vs. Simmons, claimed that the
majority, by taking away the option of executing criminals under 18, "will
crown arbitrariness with chaos."
This topic cant be abandoned without a review of the chaos that is the
nations patchwork of capital punishment laws. The concept of equal justice
is a farce when the odds of landing on death row depends on such
capricious factors as in which state a defendant committed the crime,
socioeconomic background, the mood of a local prosecutor or on the skill
of a defense attorney.
The Supreme Courts next move should be to end the death penalty for
(source: Editorial, Anniston Star)
Young killers spared capital punishment----OUR OPINION: HIGH COURT
RECOGNIZES YOUTHFUL IMMATURITY
Those who decry the U.S. Supreme Court's decision on Tuesday banning the
death penalty for youths under 18 years of age should remember this: None
of the people on death row who killed as juveniles is getting out of jail
anytime soon. Most will spend the rest of their lives locked in prison.
They cannot vote, go to a movie, see the sun dip into the ocean, have
Thanksgiving dinner with family or vacation at Disney World. Most will be
confined for life. A lucky few will have a shot at parole after 25 years.
This is serious, well-deserved punishment for murderers. It isn't coddling
of criminals. So anyone who thinks the ruling somehow is a victory for
soft-heartedness should reconsider. The vote was by the narrowest of
margins, 5-4, with Justice Sandra Day O'Connor, the usual swing vote,
aligning with dissenting justices William Rehnquist, Antonin Scalia and
'Standards of decency'
Writing for the majority, Justice Anthony Kennedy argued that the decision
shows our country's "evolving standards of decency." He said that most
states and all but a few countries prohibit the execution of offenders who
kill as children. Justice Kennedy pointed out that the data on states and
other countries provide context -- but wasn't the controlling factor in
determining the majority's position, an important differentiation.
In dissent, Justice Scalia challenged the majority's count of states
banning capital punishment for juveniles and argued persuasively that the
Constitution's Eighth Amendment shouldn't be dependent on other countries'
On balance, though, the majority's assertion that the Constitution shields
youthful offenders from the ultimate punishment because their brains are
developmentally immature is more persuasive. Evidence of that underpins
many of our society's rules and laws, Justice Kennedy wrote, including
prohibiting persons under 18 from voting, serving on juries or marrying
without parental consent.
In recent years, studies have shown that the human brain doesn't fully
mature until age 25. Proof of that is shown everyday in the higher
tendency of young people to take more risks, drive too fast, drink too
much and be less aware of the consequences of their behavior. The majority
decision says that executing people for crimes that they commit when their
judgment and maturity is still developing violates the Constitution's ban
against "cruel and unusual punishment." Sparing juvenile killers the death
penalty while maintaining tough punishment shows mature judgment by
(source: Editorial, Miami Herald)
On death penalty, Scalia's consistency shines
Feeling frisky, I found myself this week respecting Antonin Scalia's
dissenting position on whether the government should kill people for what
they did as kids.
And I found myself scratching my head over the tiny, 5-justice majority's
view on why that's now wrong.
Scalia has consistency and clarity on his side. The majority failed on
both counts, unable to deal with the basic question of whether the death
penalty itself or its application to the acts of adolescents is inherently
cruel. Instead, it used to a great extent the other leg in the Eighth
Amendment's standard, that this kind of killing is unusual. It was the
flip side of a famously poor argument: Everybody does it. The best the
majority could muster was the observation that virtually nobody does it
What's still lost in all this is a position I've long believed can unite
left and right - that the death penalty is a government program and as
such is by definition arbitrary, capricious, and illogical in its
application. It's bad enough that the government does stuff like regulate
dangerous drugs to serve the interests of the people who manufacture them
as opposed to the people who use them. It's intolerable if this kind of
Catch-22 madness is the daily routine in killing by government.
Scalia is not in favor of killing adolescent killers - or if he is that
has nothing to do with his views as a Supreme Court justice about the
issue the court decided this week. Scalia is conservative, as in very,
very conservative. His dissent cogently attacks the majority's reliance on
its own notions of what is cruel or unusual as well as its reliance on the
evolving trend in the rest of the world.
As a conservative, Scalia believes it is more important to uphold the
tradition that remains in most states in this country, what he calls "the
centuries-old American practice - a practice still engaged in by a large
majority of the relevant states - of letting a jury of 12 citizens decide
whether in the particular case youth should be the basis for withholding
the death penalty."
He might have added that behind that tradition are the decisions of
elected state legislatures on whether to have whatever kind of death
penalty they choose, including none, subject to federal constitutional
I don't agree with him, but I get where he is coming from. Moreover, I
understand his position about the propriety of taking global survey to
inform a US standard. He did something similar in dissenting from other
decisions that banned the death penalty for people who are "retarded."
The majority, for whom another conservative, Anthony Kennedy, wrote mixed
a general view of adolescence with its view of trends in the world and in
the United States.
It is, I guess, fine to argue as Kennedy did that the ability to
understand consequences, impulses, peer pressure, and character itself are
all a function of age and that adolescents cannot be lumped with "mature"
people as equally culpable. The view, however, is by definition subjective
and arbitrary when it comes to the deadly and absurd business of choosing
a cutoff age. Arguments aside, the new standard is that the state can kill
you for something you did after your 18th birthday, but you live if you
committed a heinous murder at 17 years, 11 months, 29 days. I'm just one
person but I don't recall changing that much in that interval.
Kennedy is compelling in marshaling the facts about current trends - the
fact, for example, that over the last 15 years all seven of the countries
that had carried out executions for juvenile crimes have since stopped
doing it. The implication, however, is troubling - that basic principles
in our law are affected by recent decisions in Congo, China, Nigeria,
Yemen, Saudi Arabia, Pakistan, and Iran.
More relevant is the situation here. By the Kennedy opinion's count, 18
states that have the death penalty but don't allow it for juvenile crime
should be added to the 12 that have no death penalty to constitute a clear
majority. This produced a hair-splitting dissent from Scalia and Sandra
Day O'Connor that the 12 states are different and a sharp barb from Scalia
that this is like counting the Amish in a consumer poll on electric cars.
What is missing in the Kennedy opinion, however, is an understanding that
the majority was simply adding a new absurdity to a bureaucratic maze that
is already absurd. Do one crime in one state and you get death; do the
same crime in another state and you get life; find a piece of exculpatory
evidence after a certain date and it doesn't matter if you're not guilty;
kill a white person and your chances of death go way up. Now, the accident
of a birthday is added to the pile, along with an earlier decision that
made life or death subject to an IQ test cutoff.
When the death penalty was briefly unconstitutional in the 1970s, a
different Supreme Court was both right and wrong in its decision. It was
right to show that by studying the way the death penalty was administered
it was clear that it was inherently a denial of equal protection and due
It was wrong, however, to decide that it was possible for political human
beings to fix that fatal flaw.
(source: Opinion, Thomas Oliphant, Boston Globe)
*************************** Juvenile death penalty was a
relic----Executions of minors did not serve justice.
The death penalty fails to achieve the ends that proponents claim for it.
The 2 main goals the ultimate penalty is said to accomplish are deterring
criminals from committing heinous crimes and justly punishing those
individuals who deserve to die.
The death penalty's ineffectiveness as a deterrent is made incredibly
clear in the case of Christopher Simmons, the former Missouri death row
inmate. Simmons is now serving a life sentence because the Supreme Court
on Tuesday abolished the death penalty for juveniles.
Simmons' crime was particularly vile. Along with an accomplice, he broke
into a woman's home, bound her with duct tape and dumped her into the
Meramec River. Before the crime, he had told friends they could get away
with it because they were minors.
Could Simmons have meant that they wouldn't be caught? That he and his
friends wouldn't be convicted? That they wouldn't do any jail time?
Wrong, wrong and wrong.
What's most important here, though, is that the death penalty applied in
this case at the time it occurred. If the death penalty deters minors from
committing felonies, it didn't work here.
Shockingly, the two dissenting opinions, written by Justice Antonin Scalia
and Justice Sandra Day O'Connor, both refer to Simmons' statement that he
could "get away with it" as proof the death penalty prevents crime.
This actually supports the majority's opinion that the mental reasoning
faculties of minors are not as developed as that of people just a few
When the Missouri Supreme Court first made its decision in this case, we
pointed out that it had used shoddy legal reasoning. The Missouri court's
judgment essentially ignored a previous U.S. Supreme Court decision
upholding the constitutionality of executing 16- and 17-year-olds. Both
Scalia and O'Connor note this overstepping of the Missouri court's
responsibilities, and it is right for them to do so.
It is disappointing that Scalia also resorts to a rhetorical flourish that
has little relationship to the truth. He writes "the views of other
countries and the so-called international community take center stage" in
the majority opinion. This is false.
While Justice Anthony Kennedy noted that the United States was the only
nation in the world still proudly and publicly executing juvenile
offenders, it was not a deciding factor in the court's opinion.
Scalia is right that this decision, like all Supreme Court decisions, will
fall if someday the justices see the error of their ways and reverse
themselves. We would hope for a similar but opposite result: that a future
court will outlaw the death penalty because it is inconsistently applied
and generates needless pain for victims' families with the endless appeals
it generates. It costs states much more to execute a prisoner than to
imprison someone for life.
The founders of our country didn't believe it was unconstitutional to
execute 7-year-olds. We are glad modern society takes a different and more
(source: Editorial, News-Leader)
A Step to End Death Penalty
What a difference 16 years can make in the way the Supreme Court rules on
whether juveniles should be put to death for committing a capital crime.
In 1989, the high court upheld the death penalty for juvenile offenders as
constitutional. This week, in Roper v. Simmons, it overturned that
decision by voting 5-to-4 that executing criminals under 18 violates the
Constitution's ban on cruel and unusual punishment.
This ruling, like the court's 2002 decision ending the death penalty for
persons with mental retardation, stands as an affirmation of this nation's
humanity - one that clearly recognizes children as different from adults
and who therefore must be treated differently.
The majority opinion, delivered by Justice Anthony Kennedy, supports the
sound notion that American society has sufficiently evolved since the
court's early decisions to a new interpretation of the Constitution. Said
Justice Kennedy: "The age of 18 is the point where society draws the line
for many purposes between childhood and adulthood." Indeed, young people
aren't allowed to vote or serve in the military until 18.
Still, Justice Antonin Scalia provides a useful warning in his dissent
that "It is entirely consistent to believe that young people ... lack
judgment, but, at the same time, to believe that those who commit
premeditated murder are ... just as culpable as adults," - a point that
suggests society needs to keep considering just when and how to hold
Dissenting justices also argue that because 20 states still authorize the
death penalty for juveniles, no consensus actually exists.
But Kennedy is right when he notes that most states (and now nearly the
entire international community) don't allow the death penalty for
juveniles. And the trend has been for American states to abolish it - 5
more since 1989.
This decision reflects a hope that children, no matter how heinous their
crime might be, don't always have the moral capacity to understand the
consequences of their actions, but do have the capacity to learn from
their mistakes. The five majority justices based their reasoning as much
on that progress in thought as on their collective reevaluation of past
The high court's decision also helps chip away at a lingering desire for
the death penalty in the US. When elected officials and courts can agree
that the death penalty remains a barbaric eye-for-an-eye solution that
puts society on par with the murderer, even more progress will have been
Upholding the sanctity of life is necessary in order to perpetuate it.
(source: Commentary, Christian Science Monitor)
Death penalty in U.S. no longer child's play
One day in the future, years from today, this question will likely stump
trivia experts: Name the last country in the world to abolish the
execution of juveniles?
Some will answer Iran, Pakistan or Saudi Arabia. Others will answer China,
Nigeria or Yemen. The answer, of course, is the United States. We wish we
could say it was a trick question.
The U.S. Supreme Court declared on Tuesday that it is unconstitutional to
execute juvenile killers.
That makes the list complete. Every nation in the world shares the view
that it is wrong to execute young criminals, even those nations with
histories of human rights violations.
There's a pattern here. In 2002, the U.S. Supreme Court ruled that
mentally retarded people could not be executed, reasoning correctly that
the death penalty violated the Constitution's ban on cruel and unusual
punishment. The justices, at least the majority, applied the same
reasoning on Tuesday to ban the executions of people who were younger than
18 at the time of their crimes.
The reasoning is obvious. The U.S. does not allow a 16-year-old to buy
cigarettes or vote because we don't trust his capacity to make the right
decision. By any measure or definition, a 16-year-old is still a child. A
heinous crime does not make him an adult.
Juveniles, like the mentally retarded, are less culpable for their crimes
because they lack sound judgment.
One day, we hope, the U.S. Supreme Court will rule that the death penalty
itself is unconstitutional. It took a step toward that day on Tuesday, but
the 5-4 ruling reveals a closely divided Supreme Court. With vacancies
anticipated on the nation's highest court in the near future, the Bush
administration could nominate a judge who supports the death penalty.
The death penalty undermines the moral authority of the United States to
comment on human rights abuses in other parts of the world. It is strongly
condemned by many of America's closest allies. Its use stains America's
reputation throughout the world, leads to charges of hypocrisy and damages
the nation's credibility as a world leader.
Tuesday's ruling was a landmark decision; we hope it is an omen.
(source: Editorial, The (Mass.) Republican)
Juvenile ruling should be a stepping stone
In a 5-4 ruling Tuesday, the Supreme Court declared that the death penalty
for those under 18 is unconstitutional. The weak majority opinion said
under the Eighth Amendment, in modern times the practice could be
considered cruel and unusual punishment.
Considering the immorality of the practice and the fact the United States
was the sole nation in the world to still formally sanction the death
penalty for minors, the decision of the court should be applauded.
I personally hope this decision will exist simply as a precursor to the
eventual abolition of capital punishment in all cases.
In 2002 the Supreme Court ruled that the execution of people with mental
disabilities also violated the Eighth Amendment.
This, along with Tuesday's decision, shows an encouraging trend in the
courts' ever-increasingly conservative use of the death penalty.
Tuesday's decision came during the court's ruling of the case of Roper v.
Simmons, in which a Missouri man, Christopher Simmons, was sentenced to
death for a murder he committed in 1993 when he was 17 years old.
The decision voids Simmons' death sentence, along with that of some 70
others. It also nullifies the laws of 20 states that allow the juvenile
Texas, infamous for its sweeping use of the death penalty, had 29 juvenile
offenders on death row, the most in the country. Alabama had 14, the
Writing on behalf of the court, Justice Anthony Kennedy said the decision
is appropriate because 30 states already outlawed the juvenile death
penalty, consensus now lies against the execution of minors.
Kennedy also said that since it is socially accepted that age 18 separates
people from childhood and adulthood, those under 18 should be treated
differently than adults.
He wrote capital punishment should be limited to those who commit "a
narrow category of the most serious crimes" and whose level of fault for
the crime is so extreme that they are "the most deserving of execution."
Kennedy said those under 18 simply are too immature, vulnerable and
irresponsible to be considered to operate with the level of malice
classified with the worst of offenders.
I am inclined to agree with this opinion, as minors surely are not fully
rational actors. My praise for the decision comes more from a universal
disgust of the practice than wanting to separate the mind of a 17-year-old
from that of a 35-year-old.
Kids are smart, often smarter than society in general seems willing to
admit. Minors who do commit heinous crimes will still, as they should, be
handed tough sanctions such as lengthy prison sentences. But excluding
them from the death penalty correctly moves us away from an eye-for-an-eye
As a nation that supposedly values life and religion so highly, it is
strange to me the death penalty remains so prevalent.
Pope John Paul II, who is surely an authority on Christian values, has
referred to the death penalty as cruel and unnecessary and has denounced
the United States' continued use of it.
Abolishing the juvenile death penalty is an excellent step in making our
nation more "moral," but ending capital punishment absolutely is necessary
if we want to be able to consider the United States a truly "moral"
Judges who opposed Tuesday's ruling included Justice Antonin Scalia, who
said that the decision was made in poor judgment.
He protested allowing the personal opinions of such a small group of
judges dictate the interpretation of the Constitution and promote such a
large change in U.S. law marred the integrity of the Court.
But the job of the Supreme Court is to act as the ultimate interpreter of
the Constitution, thus through the nature of our system their job allows
their educated opinions to dictate change to laws through the guidance of
the Constitution when appropriate.
As Kennedy said, the overwhelming weight of international opinion provides
a respected confirmation that the penalty is inappropriate for those under
Though many cringe at the idea of international standards being used to
help create our own laws, the global standard of our modern times dictates
the juvenile death penalty be considered cruel and unusual punishment.
If you look at the international community's attitude toward the complete
abolition of the death penalty you see that the United States finds itself
in the company of some Asian, Middle Eastern and African nations such as
China and the Sudan in its dissent from the UN Commission on Human Rights
campaign against the death penalty.
In 1989 parties to the United Nation's International Convent on Civil and
Political Rights added an amendment to the agreement calling for the
abolition of the death penalty.
The United States remains one of the rare developed nations that is not a
party to this agreement.
Domestically, calls against the death penalty have surrounded the racial
disparities in who is most likely to end up on death row or with a false
Just a year ago California death row inmate Kevin Cooper was granted a
stay just hours before his execution because new evidence made judges not
completely convinced that they have the right man.
The Western Prison Project, a nonprofit focused on U.S. justice system
reform, highlights the high costs of capital punishment.
The organization said a capital punishment trial in California with all
the appeals is roughly six times as expensive as a non-capital trial and
that California could save an average of $90 million a year by abolishing
the death penalty.
Arguments against the death penalty are both moral and tangible and
Tuesday's decision was just one step toward a more responsible justice
system in the United States.
(source: Jacqueline Deelstra, Daily Trojan)
UNITED STATES CONFERENCE OF CATHOLIC BISHOPS
Bishops' Conference Applauds Supreme Court Decision On Death Penalty For
Juvenile Offenders, Spokesman Says
The United States Conference of Catholic Bishops (USCCB), which for 25
years has been calling for an end to the use of the death penalty, "is
very encouraged that the United States Supreme Court has recognized that
executing juvenile offenders is indeed cruel and unusual," said Bishop
Bishop DiMarzio, Chairman of the USCCB Committee on Domestic Policy,
commented on the March 1 Supreme Court decision that the Constitution
forbids the execution of offenders who were under age 18 when they
committed their crimes.
"This ruling affirms the position held by a broad cross section of
religious denominations, child advocacy groups, and legal and medical
organizations," Bishop DiMarzio said. "While we continue to work to oppose
any use of the death penalty for what it does to human life and how it
diminishes our society, we are pleased that the Supreme Court has
confirmed that standards of decency have evolved and that the U.S. has
joined the rest of the world in outlawing the executions of those who
commit capital crimes as juveniles," Bishop DiMarzio said.
This is the full text of the statement by Bishop DiMarzio:
Response to U.S. Supreme Court Decision
Roper v. Simmons
Most Reverend Nicholas DiMarzio, Ph.D., D.D.
Chairman Committee on Domestic Policy
United States Conference of Catholic Bishops
The United States Conference of Catholic Bishops, which for 25 years has
been calling for an end to the use of the death penalty, is very
encouraged that the Supreme Court has recognized that executing juvenile
offenders is indeed cruel and unusual. Almost three years ago, the Court
concluded that the execution of persons with mental retardation cannot be
reconciled with the constitutional guarantee against cruel and unusual
punishment. We are gratified to see the Supreme Court extend the same
moral wisdom and legal reasoning to the use of the death penalty against
those who committed capital crimes as juveniles.
This ruling affirms the position held by a broad cross section of
religious denominations, child advocacy groups, and legal and medical
In the United States Conference of Catholic Bishops' brief on this case,
in which 29 other religious groups joined, we pointed out with our
colleagues in the Missouri Catholic Conference that persons under 18
cannot vote, serve in the military, make decisions about their own medical
treatment, or even buy a pack of cigarettes, but until now they could be
treated like adults for the purpose of the death penalty.
While we continue to work to oppose any use of the death penalty for what
it does to human life and how it diminishes our society, we are pleased
that the Supreme Court has confirmed that standards of decency have
evolved and that the U.S. has joined the rest of the world in outlawing
the executions of those who commit capital crimes as juveniles.
The U.S. Supreme Court served the cause of justice, and morality, by
finding that the execution of juvenile killers is "cruel and unusual
punishment," as defined by the Constitution.
Before the court's decision on Tuesday, death rows in Texas and 11 other
states held 72 inmates condemned for murders they committed when they were
16 or 17 years old. We don't want any of those killers released anytime
soon, but it is unconscionable that a nation that holds itself as a moral
beacon for the rest of the world would stand alone in allowing the
execution of children.
Writing for the majority in the 5-4 decision, Justice Anthony Kennedy
stated that many juveniles lack the maturity and the smarts to understand
the consequences of killing another person - at least not enough to
justify executing them. Setting the death-eligible age at 18 - instead of
at 17, where, for example, Texas previously did - may seem arbitrary, but
it's not an uncommon distinction in many less profound situations.
"The age of 18 is the point where society draws the line for many purposes
between childhood and adulthood. It is, we conclude, the age at which the
line for death eligibility ought to rest," Kennedy said.
Kennedy also acknowledged international pressure on the United States to
ban the execution of juveniles. Since 1990, according to The New York
Times, only 7 other countries had executed juveniles, and all have since
quit the practice.
"It is proper that we acknowledge the overwhelming weight of international
opinion against the juvenile death penalty, resting in large part on the
understanding that the instability and emotional imbalance of young people
may often be a factor in the crime," Kennedy wrote.
We still support the death penalty for the most heinous adult killers, but
it is also appropriate for the Supreme Court and society as a whole to
consider what Kennedy described as "evolving standards of decency," in
determining how capital punishment is carried out.
3 years ago, the high court rightfully outlawed the execution of mentally
retarded killers, and Tuesday's ruling was a further, and probably the
final, tightening of age restrictions.
Taken together, both rulings represent a significant shift in the court's
thinking on the death penalty that all Americans, both for and against,
should consider in shaping their views. New DNA technologies that might
exonerate a condemned prisoner and the finality of the death penalty
compel precise examinations of how the death penalty is enforced and who
should be eligible for execution.
Do "evolving standards of decency" mean that one day the death penalty
will be banned outright? We don't know, and we don't think it should. But
based on its most recent examination of those standards, we believe the
Supreme Court made the right decision.
(source: Editorial, Lufkin (Texas) Daily News)
The Supreme Court Strikes Down the Death Penalty For Juvenile Offenders: A
Morally Good Result, A Morally Good Result, Supported by
Less-Than-Convincing Legal Reasoning
This week, in Roper v. Simmons, the Supreme Court declared the death
penalty for juvenile offenders to be unconstitutional. In so doing, the
Supreme Court brought the United States into line with every other nation
in the world: Not a single other nation actively countenances the juvenile
death penalty. Surely, that is a result to be applauded.
Yet Justice Anthony Kennedy's bare 5-4 majority opinion serves as a
sobering reminder that laudable results do not always coincide with a
convincing jurisprudence. The Court's result may be laudable, but its
reasoning fails to persuade.
As it has for more a generation, the legal debate over the death penalty
is exposing the unbridgeable divisions inside the Court. At the same time,
it is also exposing the Court's inability to match its profound, morally
persuasive activism in this area, with convincing reasons for imposing its
will on the law.
The Background for Roper: Eighth Amendment Law, Including 2 Key Precedents
In deciding Roper, the Court was not writing on a clean slate. In 1988, in
its 5-4 decision in Thompson v. Oklahoma, the Court had struck down the
death penalty for juvenile offenders under the age of 16. Then, the next
year, in another 5-4 decision, Stanford v. Kentucky, the court ruled that
states could impose the death penalty on 16 and 17 year-old offenders.
Thus, the question for the Court in Roper was, in essence, whether to
overrule Stanford - and hold that eighteen-year-old offenders are the
youngest who can face the death penalty. And the Court so held.
In all these cases, the Court was called upon to interpret the Eighth
Amendment's ban on "cruel and unusual" punishments. How does the Court
decide whether a particular punishment qualifies as cruel and unusual? The
Court has long held that the answer must be determined by reference to
"the evolving standards of decency that mark the progress of a maturing
society." (However, originalist justices, such as Antonin Scalia. have
But that only leads to another question: How is the Court to measure and
discern our "evolving standard of decency?" Are there objective standards
to be consulted? Or is this a matter of judges to decide based on their
own subjective view?
One Approach: Defining "Evolving Standards of Decency" By Objective
In the late 1980s, the search for objective standards to govern this area
of law went into high gear.
The more conservative justices felt that the "evolving standards of
decency" test had simply become an excuse for liberal justices to rewrite
the Constitution according to their own personal views of right and wrong
-- regardless of constitutional text, history or precedent that might
undermine the results the liberal justices preferred. After all, by
talking about "evolving" standards, the test seemed to be profoundly
anti-conservative - it explicitly encouraged a departure from past
Conservative justices worried that unless objective standards were
devised, liberal judges, based on their personal, subjective views, would
push death penalty jurisprudence toward more and more liberal standards -
with abolition awaiting at the end of the "evolution" process. So the
conservatives came up with an objective test - but they could not command
a majority in support of it.
In Stanford, a four justice plurality said that "evolving standards of
decency" should be measured exclusively by reference to society's views as
reflected in legislative enactments and state practices. In other words,
in the view of four Justices, the Court's job, when it came to the death
penalty, was not to conduct an independent assessment of standards of
decency. It was simply to defer to the judgments of elected legislatures
in the states.
No wonder this purely objective approach did not command a majority. If
adopted, it would have reduced the Court to bean counters. The Justices
would have had little to do in death penalty cases - perhaps the most
morally troubling and wrenching of all the cases before the court - but to
keep a tally: How many states allow the juvenile death penalty for 17 year
olds and how many don't? How many allow execution of the mentally retarded
and how many don't?
Of course, the justices still would have debated about counting
methodology (for instance, how do you count the states that don't allow
the death penalty at all?). And they still would have argued about what
level of disapprobation constitutes a sufficient national consensus to
deem a practice antithetical to our evolving standards of decency: Is it
enough that a majority of the states allow a certain death penalty
practice? Or is a supermajority needed and, if so, how big of one?
But in the end, the approach would have eliminated most subjective
components from the Court's Eighth Amendment jurisprudence. Once the
requisite number of states for a "consensus" had been set, and a way to
count anti-death-penalty states had been chosen, the Court could have been
replaced by a computer program. Of all the areas of law, this one,
especially, should not be reduced to machine-like calculation.
Thus, in Stanford, Justice Sandra Day O'Connor rightly balked at the idea
of giving up her right as a judge to perform some independent assessment
of public morality, rather than simply being reduced to a bean-counted.
And since the 4 dissenting justices agreed with her on this point, at
least, O'Connor's became the prevailing view.
The Current Approach: A Mixture of Independence and Bean-Counting
And so matters stood -- until the Court's decision 2 years ago in Atkins
v. Virginia. There, the Court declared it unconstitutional to execute the
mentally retarded. Moreover, the majority opinion made clear that while
the Court would still be making an independent judicial assessment of the
challenged practice, as Justice O'Connor had insisted, it would also use
the state by state bean-counting approach.
A petitioner, then, could avoid the death penalty if the state imposing it
was out of step with the others - and perhaps even with international
opinion. But he could also avoid the death penalty if the justices found
the practice otherwise inconsistent with their individual - and inherently
somewhat subjective - senses of what constituted "evolving standards of
Atkins itself applied this very approach. In the 1989 case Penry v.
Lynaugh, the Court had considered the constitutionality of executing the
mentally retarded and had concluded that a national consensus against the
practice did not yet exist. The question in Atkins was whether such a
consensus had developed since 1989.
The Court said yes - and bean-counting played a prominent role in its
analysis. In Atkins, a 6-3 majority, including both Justice O'Connor and
Justice Kennedy, discovered a sufficiently marked trend in the states
towards abandoning execution of the mentally retarded to find that a
"national consensus" had emerged.
Independent of these statistics, the Court also found the death penalty,
as applied to the mentally retarded, unconstitutional for another reason:
Because the mentally retarded are inherently less responsible for their
acts, to execute them would be to impose a punishment unconstitutionally
disproportionate to the moral responsibility of the perpetrator.
In short, in Atkins, a majority -- while still explicitly endorsing and
applying the principle that judges had to exercise their own subjective
judgment when evaluating Eighth Amendment claims - also brought objective
criteria back into the mix.
But this time, ironically, the use of objective criteria - once
conservatives' favored approach - led to a liberal result: The mentally
retarded could not be executed, even if they had committed heinous crimes.
The Roper Decision: Following the Mixed Process Atkins Adopted
The Court's decision in Roper was basically an application of the standard
Atkins had set out. For this reason, Roper is not just an important
decision regarding capital punishment - though it is that.
It is also an important opinion in the context of the larger debate --
both inside and outside the Court -- about judges subjectively imposing
their value judgments on the law, even if democratic majorities in a given
state (or even nationally) may disagree with those judgments. This issue
is at the center of the Court's savage debate over abortion and gay rights
- and the same rancor is now at work in the area of the death penalty.
In his opinion for the majority in Roper, Justice Kennedy runs through the
statistical case for an emerging national consensus against the juvenile
death penalty. But as Kennedy seems to realize, the statistical case is
not that strong - certainly not as strong as in Atkins.
The Atkins Court was able to rely on the fact that, after 1989, no state
had gone on record affirming its desire to execute the mentally retarded.
But the situation with juvenile offenders is rather different - and that
likely made Roper a harder opinion to write. Two states recently
reaffirmed their desire to execute particularly culpable juvenile
offenders. Twelve states still have juvenile offenders on death row. So is
there really a definitive national "consensus" against the juvenile death
penalty? Arguably not.
Perhaps for this reason, Kennedy does not hinge the Court's decision on
the statistics. Instead, the decision rests mainly on the majority's
independent judgment that, because juveniles (much like the mentally
retarded) tend to be less responsible for their acts, it would be
unconstitutionally disproportionate to impose the death penalty on
Kennedy admits that drawing a bright line at age 18 is an imperfect
solution to this constitutional problem - after all, some 17 year-olds are
particularly mature and some 18 year-olds particularly immature. But he
points out that 18 is the age at which society tends to draw the line in
areas such as voting and military service - so why not here too? Some line
must be drawn, after all; states can't constitutionally execute
The Reason for Justice Scalia's Rage: Dubious Logic to Justify the Roper
As Justice Antonin Scalia rages in his dissent, the majority's approach
raises some vexing difficulties. Indeed, it's arguably anti-democratic,
anti-states' rights, and anti-jury: By declaring the death penalty
categorically unconstitutional as applied to juvenile offenders, the Court
is depriving every state legislature of its right to have juries decide,
on a case by case basis, whether an individual juvenile offender is
sufficiently morally culpable to warrant the death penalty.
A power that once belonged to state legislatures and local juries, now
rests in the hands of the U.S. Supreme Court alone. And the Court has
decided to adopt a blanket rule against even executions the legislatures
and juries surely would have approved - for instance, in the event of a
long series of premeditated rape-torture-murders by a 17-year-old.
The majority justifies this disempowerment of elected officials and juries
largely based on scientific studies suggesting that juveniles are,
generally speaking, decisively less responsible for their conduct. But, as
Scalia points out, the weighing of such scientific evidence in the context
of debating and making social policy is exactly what we expect
legislatures to do - yet the Court has chosen to usurp that function.
For Justice Scalia, this usurpation captures everything that is wrong with
a Court dominated by Justices O'Connor and Kennedy. Whether the issue is
abortion or gay rights or the death penalty, these two justices believe in
the idea of exercising independent judgment about what liberty means, or
what punishments are fair and just. In all these areas, as in the death
penalty area, Scalia finds their approach anti-democratic, anti-states'
rights, and just plain infuriating.
The Continuing, Crucial Role of Justices O'Connor and Kennedy
Justices O'Connor and Kennedy may not agree about how to apply this kind
of judicial discretion in individual case. (In fact, in Roper itself, they
disagreed). But they are united in their commitment to the principle
behind it: That the judiciary can second-guess legislative judgments where
inherently malleable constitutional limitations - such as the Eighth
Amendment's ban on cruel and unusual punishments -- allow them do to so.
In this sense, the ghosts of Justices Earl Warren and William Brennan have
come back to inhabit this Court with a vengeance. With remarkable
frequency, given the innate conservatism of its membership, it is a Court
eager to accept the challenge of moral governance -- and one that is
relatively unconcerned with problems of doctrinal justification and
To a significant degree, this development is attributable to Justice
Kennedy's emergence as a moralist judge. This evolution has been most
apparent in recent years, but it is hardly new; it dates back more than a
decade, to Kennedy's 1992 decision to vote against overruling Roe v. Wade
in Planned Parenthood v. Casey. Especially in the last few years, Justice
Kennedy seems to have decided that, when it comes to the great social
issues that come before the Court, he wants to be on the right side of
history - and he wants the Court as an institution, to the extent he can
control it, to be there with him.
Given Kennedy's conservatism, his sense of where history is headed will
not always coincide with that of the liberal justices whose methodologies
he increasingly adopts. But in many areas of law, he is now the Court's
moral center - and as he goes, so goes the law.
So just as conservatives have found their death penalty bean-counting
turned on its head, so too may liberals someday find their own, more
subjective methods, turned toward results of which they disapprove.
Justice Kennedy is certainly a moralist - but we should not forget he is
also a conservative (albeit libertarian) moralist, too.
(source: FindLaw (Edward Lazarus, a FindLaw columnist, writes about,
practices, and teaches law in Los Angeles. A former federal prosecutor, he
is the author of two books -- most recently, Closed Chambers: The Rise,
Fall, and Future of the Modern Supreme Court)
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