My take on the Roper v. Simmons opinion

The Supreme Court issued this decision last week on the juvenile death penalty, and the decision has turned out to be quite controversial. The verdict itself was not that vital to American life, in that no rights are going to be squashed, etc. Many people, in fact, will probably agree that minors lack the legal responsibility to face such a harsh sentence, and agree with the judgment on principle.

But that’s an opinion, and it’s not based on any objective evidence. At least none offered by this verdict.

Justice Kennedy wrote the majority opinion for the case, and his arguments can be summed up into three points. One is that the Eighth Amendment to the constitution bars cruel and unusual punishment, and states that "the Court must refer to “the evolving standards of decency that mark the progress of a maturing society to determine which punishments are so disproportionate as to be cruel and unusual." In other words, we determine what “cruel and unusual” is by what we think the consensus of Americans think it is.

Two is that minors are not as culpable for their actions as adults in that they display a lack of maturity and understanding of personal responsibility. Kennedy noted that the court recently declared that the death penalty was unconstitutional for a mentally retarded person convicted of a capital offense. “Mental retardation, the court said, diminishes personal culpability even if the offender can distinguish right and wrong.”

The third argument was that America is quite alone in the world (relatively) in it’s use of the death penalty. His reasoning here is “from the time of the Court’s decision in Trop, the Court has referred to the laws of other countries and to international authorities as instructive for its interpretation of the Eighth Amendment’s prohibition of “cruel and unusual punishments.” He goes on to say that it didn’t help the Justices come to a decision, but only “confirmed” what they had decided.

I read the opinion, but remain unconvinced, and alarmed for a few reasons. Justice O’Connor’s dissent and Scalia’s dissent are much more convincing.

In Kennedy’s first point, that there is consensus in the US on this topic, the numbers he uses are not enough, and in other cases have not been enough. There are still 20 states that allow the execution of a minor. Hardly a consensus.

Scalia responded to this "Now the Court says that a legislative change in four states is significant enough to trigger a constitutional prohibition. It’s amazing to think that this subtle shift in numbers can take the issue entirely off the table for legislative debate."

Kennedy tries to compare the direction of change in legislative action regarding juvenile capital punishment with that of the mentally handicapped, to try and show that the nation is moving overwhelmingly toward that end. O’Connor states otherwise, in that the movement toward the latter was much more evident, and the action toward juveniles was “considerably slower.”

O’Connor points out that in this case, the defendant was well aware of consequences and had considered them when he declared to his friends, in planning the murder/burglary, that they could get away with it, as they were minors.

This is a point that is brought up much in this debate: some minors do have the understanding and sense of right and wrong enough to be responsible for their actions. Indeed many are tried as adults because of the severity of their crimes. If you are going to try someone as an adult, then treat them as an adult, with adult responsibility and culpability. Death penalty included.

It is Scalia who is much more scathing of this opinion. Especially the last point Kennedy makes, which looks to international mood and opinion. O’Connor does not mind this action, as she notes that the Court does this frequently in the cases regarding “cruel and unusual punishment.” But Scalia’s point is that the Court shouldn't be doing that anyway. After all, most of the world (outside of Europe) outlaws Abortion, but the Court wouldn’t necessarily take that view. Scalia accuses Kennedy and company of “looking over the heads of the crowd and picking out their friends.” In other words, using International opinion when it suits their personal preference. He is astounded that the Court would change its mind after only 15 years.

One more thought. Scalia made another point that the Court took the subject off the table for debate in this country based on some pretty flimsy numbers. This is the part that is disturbing to me. It seems that many people, and most people in States where the juvenile death penalty is still active, believe that there are some people who can be considered culpable, even though they are below the age of 18. Kennedy makes the case that this sentence is rarely issued to minors. This is true, but as it is true, it is the reason that I think the system works correctly. What the Court has done here is take the power of deciding, on a case by case basis, whether or not a minor is responsible enough to warrant the death penalty, from the jury. And from the legislature.

Scalia said: "(The) infrequency (of executions for under 18 murderers) is explained, we accurately said, both by the undisputed fact that a far smaller percentage of capital crimes are committed by persons under 18 than over 18, and by the fact that juries are required at sentencing to consider the offender’s youth as a mitigating factor."

Powerline responds here. John Hinderaker has an article in the Daily Standard critisizing Kennedy's decision to compare international law. I like it, but I thought Scalia's dissent was better.