Decision on Juvenile Death Penalty

The Constitution has become so revered that it is now burdened by the popular perception that everything that is good must be mandated somewhere in the Constitution and that the Constitution must prohibit all that is bad.  Though the Constitution protects important individual liberties and privileges, it is primarily a framework and context in which we Americans must decide how to rule ourselves.  We collectively cannot dodge the duty to decide what is wise and prudent and leave decisions up to Courts.  The critical distinction between what is preferred and what is required by the Constitution was lost by the Court in Roper v. Simmons.

Reasonable people can disagree about whether it is wise to apply the death penalty to those who commit a capital offense before their reaching their eighteenth birthday.  Some Libertarians and Conservatives are against the death penalty altogether because that is too much power to grant the state.  Nonetheless and despite the Court’s recent ruling, that is a decision that should be largely left to the people and their representatives. In a decision separated by single vote, 5-4, the Court ruled that after over 200 hundred years the Eight Amendment’s injunction against “cruel and unusual punishment” now prohibits the execution of criminals who committed crimes as minors.  The disappointing part of the decision is the weakness of the arguments used by the Court and the increasing tendency of the Court to float on a sea of social issues unmoored by law and precedent.  The Court basically made four arguments to support its decision:

  1. The people are against the execution of minors.
  2. Jurors are incapable of assessing the maturity of young defendants.
  3. The Court’s members are against the execution of minors.
  4. The world is against the execution of minors.

National Consensus

The words “cruel and unusual” are value-laden and likely to change with time.  The Court now suggests that the country has reached a national consensus that execution for crimes committed as a minor is “cruel and unusual” and that juveniles are fully responsible for their decisions.  However, if such a consensus had been reached then we could see the consensus in decisions of those most attuned to the opinion of the people, elected officials.  Eighteen states permit the execution of minors so empirically there is no broad national consensus as suggested by the Court.  If every jurisdiction, save a handful of small ones prohibited executions for offenses committed as minors, the Court could argue that the country having reached a consensus.  However, at this point the Court is reaching far beyond what can be supported by the evidence.

Juries are Incapable of Weighing Age as a Mitigating Factor

The Court expressed concern that juries would be so emotionally overwhelmed by brutal violent crimes that they would not be able to fairly weigh youth as a mitigating factor.  The Court does not cite evidence for their assertion or provide a single case where a jury erred in this way.   Indeed, the rate at which capital punishment is applied to minors for the same crimes as committed by adults suggests that juries take seriously their responsibility to weigh mitigating factors.  The Court’s assertion is probably laying the ground work for a future argument that jurors are not capable of exercising sufficiently careful consideration of other mitigating factors such a poverty and emotional immaturity and therefore all capital punishment is “cruel and unusual.”

The Court Has the Necessary Moral Sensibility

The Court rather arrogantly asserts that it is the moral arbiter affirming that “[I]n the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eight Amendment.”  Justices are chosen on the basis of their legal abilities not on their moral perceptions and are no more qualified than legislators in deciding moral issues.  We do not choose philosophers, theologians, or ethicists for the Court.  We choose legally-trained minds.  Yet, there appears not limit to the wisdom which members of the Court will ascribe to themselves.  As Justice Antonin Scalia argued in his dissent, “By what conceivable warrant can nine lawyers presume to be the authoritative conscience for a nation?”

The World is Against It

Perhaps most disconcerting is Court’s argument that constitutional interpretations are buttressed by international opinion. Justice Kennedy writes that, “The opinion of the world community, while not controlling our outcome, does provide respected and significant confirmation for our own conclusions.”

The experience of other countries is a relevant argument in legislative debates about any issue.  However, the Court’s appeal to international authority is unprincipled since it not an argument that the majority of the Court would apply to other cases.  As Scalia points out, the Court would find inconvenient international opinions in other controversial areas.  Only six countries permit abortion-on-demand up to viability.  Does this international consensus deserve consideration in the Court’s abortion decisions?  Should the Court overturn the exclusionary rule that prohibits the admission in court of evidence illegally obtained by the police because no other countries choose to observe such a restriction?  Should the Court permit the direct funding of religious schools because a consensus of European countries finds that this does not foreshadow a theocracy? No. These international decisions do not support the Court’s current positions.

A majority of the Court has demonstrated in this case a willingness, indeed an eagerness, to twist principle and ignore law in the service of the outcome they politically prefer independent of the Constitution. More appointments to the Court by Bush can not come too soon.

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