Every now and again a newspaper editorial board will get an issue so wrong that the only thing positive to say about it is that they are at least consistent in their wrongfulness. A prime example is today’s Seattle Times editorial on the U.S. Supreme Court’s recent decision of Roper v. Simmons—which establishes a new, categorical rule against imposing the death penalty upon ANY and ALL violent offenders who commit their horrible crimes while 16 or 17 years of age.
The editorial starts out by proclaiming that decision is somehow “…much more compelling because of who wrote the majority opinion.” Specifically, the editorial refers to Justice Anthony Kennedy—the author of the majority opinion. They relate how he had previously voted on the other side of this issue in a prior case, but had since come to change his mind.
How does THAT make the reasoning or soundness of the reasoning any better? Neither appeals to authority nor the genetic fallacy mean much to me in making assessments about legal principles. Granted, it’s good to have judges who are humble and willing to concede that they may be wrong about things and it is important that issues be revisited and thought through carefully. However, if we are committed to the rule of law rather than the rule of man, then the fact that Justice Kennedy flip-flopped on the issue fails to make the court’s decision “much more compelling.” Since judges are humans, there is always some degree of subjectivity involved in adjudication, but the editorial’s praise of “Justice Kennedy’s Kennedy's change of heart” certainly sounds like an appeal to the rule of man.
Next, the editorial mentions some studies that the majority approvingly cites for the proposition that persons under 18 are less culpable for their actions. But as Justice Scalia pointed out in dissent, the studies were cherry-picked by the court and never brought before the trial court (i.e., in an adversarial process). Further, those studies about certain minors are extrapolated by the majority to suggest that ALL persons under 18 are less culpable in committing horrible, gruesome acts.
The editorial suggests that the majority’s categorical rule prohibiting the death penalty in ALL cases involving 16 or 17 year-old perpetrators coincides with our categorical rule limiting the voting franchise to those who are 18. But that doesn’t prove the legal argument at all. For the categorical rule for voting was established by CONSTITUTIONAL AMENDMENT, and NOT by judicial fiat—like in Roper.
Under Article III, the judiciary has a role in expounding upon the constitutionality of federal law and in interpreting provisions of the federal constitution, but it routinely does so in individual cases and controversies. The courts take multiple factors and the surrounding circumstances into account in arriving at decisions. Particularized decisions involving the parties in litigation is the primary function of courts, not categorical decision-making in cases wherein such crucial, individualized determinations need to be made.
From there, the editorial describes it as “significant” that fewer juveniles are being put to death these days. The frequency with which the death penalty is exercised is hardly significant to the determination of the limits of states’ authority in prescribing capital punishment. Indeed, the fact that fewer executions of minors take place can just as easily be used to establish that American legislatures, judges and juries are very careful in their deliberations on the use of just and lawful punishment. Insofar as I know, there is no “Execute the Children!” campaign being waged in this country.
Next comes one of my least favorite parts:
The ruling also erases the United States' dreadful distinction of being the only nation in the world still to condone execution of juvenile offenders.
I also find curious the editorial’s claims that advancement in our understanding of DNA in exonerating those falsely accused and convicted of capital crimes should now give us reason to limit the application of the death penalty. Do past mistakes or failures override the fact that technology now allows us to determine the true perpetrators of horribly gruesome crimes with greater accuracy than ever before? Our technology has now evolved to the point where we can now make far more accurate determinations in these cases. Given that we are now able know with greater certainly who the most violent and vilest criminals amongst us are, if a jury is thoroughly convinced and the gruesome nature of the crime call for it, then subjecting a convicted murderer to death is entirely justified.
I guess suicide bombers don't count.
First, if any perp ever deserved the death penalty, this one did, regardless of age. According to news reports I've read, prior to doing the murder, he bragged to friends that he would not be executed, because he was a minor. (He was apparently and unfortunately right.) Then he bound the victim in duct tape and tossed her off a bridge, causing her death by drowning.
Second, the comments by the justices illustrate the miserable state of the supreme court. There was no pretense by the majority of justices about consulting the constitution to see whether the law applied in the case conforms to the constitution. Rather, the tenor of the decision was about the supremes' role in detecting current standards of public opinion and judicial practice in foreign countries.
This is a landmark case encourages murderers and illustrates the scandalous state of the supreme court. What a crock.
Posted by: Boonie on March 3, 2005 06:03 PMSo they are fully capable adults in regards to choosing an abortion at 15, but limited capcity children when it comes to paying the penalty for carrying our premeditated murder.
How Convenient.
There are endless examples of this, not least the recent emphasis on disenfranchisement- which of course is a vitally important principle with regards to the poor, homeless, and felons - even the deceased! - but never to our serving military.
Now truly, when respect for principles is always and everywhere subjugated to short-term personal gain - whatever we can get away with - then what is that but the rule of man?
Posted by: Chuck Miller on March 3, 2005 08:01 PMThat whole lower the voting age to 18 crap was an outgrowth of the Viet Nam era liberal Bolshvik Pied Piper trip on the youth -- start a new voting demographic - or pool of voters that could be easily swayed to vote against anything vaguely suggestive of the military -- when I was in high school 40+ years ago the average kid was a lot more mature and able than they have been since (that is an observation from an old teacher I knew several years after I graduated)--still there probably wasn't 20% of the kids that had any knowledge or interest in political matters.
And that brings to mind the other thing that your 21st BD got you -- you could go to the liquor store and get your PICTURE ID CARD -- yess folks they really used to have such a thing -- now if they needed a picture ID 40 years ago at the liquor store what's the big deal about picture ID for voting???????
Posted by: Bill on March 3, 2005 09:35 PMFor example, is there any doubt at all that John Mohammed and Lee Malvo were the perpetrators of the DC area string of killings that had the whole place in terror? What's the point of John Mohammed wasting even enother nickel of my tax dollars? He should be executed immediately. As for Malvo, I think he graduated to the ranks of adulthood when he committed multiple killings, many of them with cold calculated planning. And he was 17, just one year shy of adulthood.
I agree that we should be more lenient on kids, had Malvo been 12 it would have been a different scenario. But in this case, Malvo deserves the death penalty for the same reasons as Mohammed.
Our system is great, innocent until proven gulty is by far the best way to adminster justice, but we need a relief valve for these really heinous killers, lest we lose the detterent effect punishment. If a criminal knows it will be years before he is executed, if ever, especially those who have already done enough time to be comfortable with the penal system, then there is no detterrent.
Our modern judicial system is so slow with administration and the assessment of the punitive aspect of justice that it's difficult for those of us on the outside, let alone the criminals to make any kind of expedient connection between action and consequence. Couple that with the liberal ideology that constantly casts any type of minority as a victim, and justice is often left undone.
That is what the SC settled for all these (young) perps.
Step back and let the movie play.
Before the ruling, law enforcement held 'restraint' when it was determined, the PERP was 'young'.
This 'line' has now been erased. The split second decision by the officer in the field will NOW have NO such restrictions.
More PERPs, yes, more DEAD perps, YES!!
The end of due process.
How long will those of us who LOVE freedom, allow these (obviously anti-American) so called 'judges' LEGISLATE, unopposed!?
Posted by: Arky on March 4, 2005 04:47 AMI am amazed how "abortion" is the one procedure that gets exceptions on everything. I simply view abortion as a medical procedure, like all other medical procedure.
As you pointed out a minor could get an abortion without parental consent but could not go and get a cavity filled. How about a minor getting a boob job? Who are we to tell what a girl can do to her body? Abortion fine for a minor, boob job needs parental consent. Abortion fine for a minor, getting a tatoo either banned or need parental consent. Abortion fine for a minor, getting ears pierced need parental consent.
Think of this. Medical professionals and educators are required by law to report suspected child abuse/child sexual abuse to authorities for investigation. All states have an age of consent under which all sex with the person under this age is statutory rape. So, if a child under this age is pregnent it is proof positive that statutory rape has occured. Do these same medical professionals and educators have to report to law enforcement officials that the child has been abused?
Shouldn't all medical professionals, including Planned Parenthood, have to report all pregnant women under the age of consent to law enforcement authorities for investigation?
Posted by: dmeyers on March 4, 2005 06:57 AMHas the Supreme Court ever ruled that a 15 year old can get an abortion without parental consent?
Or is it just crazed state lawmakers that pass those laws?
The death penalty never deters crime, but a culture willing to embrace it sends a clear message that killing is OK ... as long as you are willing to pay the price (death has no fear for many).
Posted by: Doc on March 4, 2005 08:51 AMYou have NO PROOF WHATSOEVER that the death penalty never deters a crime. I'll bet if you did many interviews of violent felons in jail, you'd find multiple cases of perps who did not kill a police officer during a crime because they KNEW they'd be a smoked chicken sandwich.
But I believe the death penalty is necessary, because it is most useful when it is threatened. Case in point? Gary Ridgeway.
If the Green River Killer had gone to court, we could have tagged him with maybe 6 or 8 of his killings. That would have cost the taxpayers tens of millions of dollars, and the families of the victims would have been put through the whole horrible situation once again - in front of television cameras. Worse yet, dozens of his cases would have remained open.
Instead, Sheriff Reichert and the crew threatened Ridgeway with the death penalty. Like most serial killers, Ridgeway is extremely narcissistic. He can kill 50 people but does not want his own life ended. So Ridgeway 'fesses up to what, 48 killings? All those cases are closed, it cost the taxpayers a few weeks' pay for the interrogators, and the families don't have to be put through the emotional hell.
Without the death penalty, Gary Ridgeway would not be a convicted killer yet. The trial would still be going on today.
Posted by: Larry on March 4, 2005 09:23 AMI can guarantee with absolute certainty that no murderer put to death has ever re-offended in this or any other state. Hmmmmmmmm ... sounds like a deterant to me.
Posted by: Jay on March 4, 2005 09:32 AMThe gang of five needs to heed the thoughts of a great American, my father said you can’t make your own rules after joining the game, if you can not play by the rules, don’t play the game.
You're back! You've been hiding out.
I see you are still up to eyes in the rosy colored garden of life, instead of facing the cold hard reality of it.
Why should a teenager not kill now? What's to stop them? Their strong moral values?
Please, stop dreaming and wake up. Young people today are conditioned to kill without remorse. It's everywhere around them. Now, the ultimate punishment is gone.
The school yard bully will continue their bad behavior until someone gets the courage to whip their butt! When they physically get their butts beaten, they figure out that it hurts!
They push and push and push, until some kid pushes back!
The death penalty is NOT cruel or unusual punishment, it is justice. It is a strong deterent to crime.
Have a great day!
Does the punishment fit the crime? In capital murder cases, death is the only fitting consequence.
Posted by: dkpcowboy on March 4, 2005 09:42 AMScenario 1 - A 17 year old, on the eve of his 18th birthday, breaks into a house at 11:55 pm and goes into the master bedroom, pulls out a gun and at 11:59 pulls the trigger, blowing away the occupants. The gunshot also knocks the clock off the nightstand breaking it. The clock reads 11:59pm.
Scenario 2, same as above but his gun jams when he pulls the trigger. He checks his gun and and pulls the trigger again, this time it fires. Same result, but the clock is knocked off the night stand and breaks, reading 12:01am
According to the Supreme Court, Scenario 1 gets the perp jail time, scenario 2 gets the perp the death penalty.. Certainly makes a lot of sense to me.
Who wrote that..., Oh, wait, it was Justice Scalia (Stanford v. Ky., 492 U.S. 361, 369, (1989). This is the standard that Justice Kennedy followed. And can we please get pass the use of the phrase "flip-flop" for anybody who changes their mind. After all, the inability to change ones mind when new information comes in is one of the greatest signs of mental simplicity (cf. this board).
Further, let's talk about Justice Scalia's flip-flop, since he argues (as some of you have) that a women is not mentally able to decide on wether or not to have an abortion or not (and, as an aside, the court has said that parental notification is fine, as long as their is a judicial bypass, note, Washington State has a deeper right of privacy in its constituition, and parental notification is probably unconstitutional), but you can electrocute them because they are mentally able to know the consequences of their actions.
Of course, as has been pointed out, the death penalty is not a deterent. Add to that the fact that most studies show that 1 in 10 persons were improperly executed, you can see why life in prisionment, where you can correct mistakes, is a better punishment. Finally, the single most determinant factor of wether you get the death penalty or not is wether you can afford a good defense or not. Have an attorney provided by the state of Texas who is drunk and sleeping through the case, you get fried. OJ Simpson? You get to golf.
If you are in favor of execution, fine. There are probably a number of cases we can all agree deserve it, if anyone does, but except it for what it is: A form of human sacrificed practice in the hopes that bad things won't happen. Throw in your desire to execute the retarded and young, and we have a proper Roman sacrifice going.
I agree that the person in the immediate case was as bad of actor as their is, but lets stop thinking he somehow now gets to be Martha Stewart. Life in a maximum security prision, without parole, where he has to think of why he is there every day as he worries about dropping the soap or making the wrong gang member/aryan/drug dealer mad, isn't as much fun as Republicans always seem to think it is.
It was a good decision, and complaining about a court that has spent the last twenty years making execution easier and easier (Jusitice Scalia: proof of innocense is not enough to overturn a conviction) as being "liberal" and out of control is ridiculous.
Posted by: JDB on March 4, 2005 10:25 AMThe two boys arrested after the slaying of an elderly San Luis Obispo man this week have fathers who are convicted felons (convicted of six and three felonies and two misdemeanors) and mothers who struggled with little money to raise them.
Both dads have been in and out of County Jail and state prison for the past 15 years, according to court records. The father has been in San Luis Obispo County. Most of the crimes were felony drug possession and receiving stolen property. "We are adults. They mimic us," said Daniel Reynolds, who allowed the father to move in with him in Paso Robles in 2003.
The 13-year-old boy accused of using a skateboard to bludgeon to death 87-year-old Gerald "Jerry" O'Malley has been charged with four felonies: murder, elder abuse, burglary and auto theft. His 12-year-old friend is charged with felony auto theft for allegedly stealing O'Malley's Ford Explorer after the killing.
Father to son. And father to son again, and again, etc...
Punish the crime and set an example.
"Of course, as has been pointed out, the death penalty is not a deterent."
Where, by whom? That's false, and a straw man. The death penalty has deterred many crimes. How many cops lives' have been saved because a criminal knew that killing a cop would get them the needle?
Furthermore, please read my comments above about Gary Ridgeway. Can you refute my hypothesis? Gary Ridgeway would not yet be a convicted killer without the death penalty.
Do you live in Washington State? How would you feel about having to spend $20 - $50 million in taxpayers money to convict Ridgeway of 6 to 8 murders in a court of law?
"Throw in your desire to execute the retarded and young, and we have a proper Roman sacrifice going."
That's an ignorant statement if I ever read one. Remember, it was Clinton who okayed the execution of a mentally retarded killer in Arkansas so he could appear tough on crime for his Presidential run.
Posted by: Larry on March 4, 2005 10:36 AMI'm a Progressive and I have no Philosophical problem with the death penalty. I just doubt the absolute certainty of many of the convictions and am therefore averse to executing a potentially innocent person.
Posted by: headless lucy on March 4, 2005 11:00 AMYou're kidding, right? Are you suggesting that a judge doesn't become wiser with experience? Are you suggesting that, if someone closely examines a question twice, their second conclusion will be not be deeper and more well-considered, if only from the additional hours, if nothing else?
----Since judges are humans, there is always some degree of subjectivity involved in adjudication, but the editorial’s praise of “Justice Kennedy’s Kennedy's change of heart” certainly sounds like an appeal to the rule of man.
I understand this sentence until I get to the "but." How does the obvious fact that a judge may change his mind undermine the rule of law? Obviously, a person can come to a better understanding of the law. It is unlikely that a judge, over time, would understand the law less rather than more.
If Judge Kennedy had a reputation for being a flip flopper, you may have a point - your argument could be, "look, the guy's just making it up as he goes along." But, if the evidence is on the side of Judge Kennedy's consistency, then the fact that he changed his mind would be a factor indicating that the decision was particularly reflective.
----But as Justice Scalia pointed out in dissent, the studies were cherry-picked by the court and never brought before the trial court (i.e., in an adversarial process).
Is the trial court uniquely qualified to judge sociological or psychological studies? I think not. Are Scalia's studies better? I don't know. Cherry-picking is in the eye of the beholder.
Scalia could be right, but just because he said it, doesn't make him right. A person would need to analyse the studies, and I have no idea if the Times or you have taken that time.
----But that doesn’t prove the legal argument at all. For the categorical rule for voting was established by CONSTITUTIONAL AMENDMENT, and NOT by judicial fiat—like in Roper.
Now you're being positively silly. The constitutional amendment LOWERED the voting age. Seventeen year olds have never be able to vote. The court's point is that seventeen year olds have never been considered fully legally responsible for their actions, not that all age limitations be set by constitution amendment.
----Indeed, the fact that fewer executions of minors take place can just as easily be used to establish that American legislatures, judges and juries are very careful in their deliberations on the use of just and lawful punishment.
How does this make any sense? We used to execute X juveniles a year, and now we execute some number less than X. Let's concede that this is evidence that juries, et al, are being more careful in deliberations. How does this help the case? Doesn't it show that we executed too many before, and the trend is to execute fewer rather than more? If that is the case, then clearly there are special concerns surrounding the executions or juveniles that have not always been respected by the process. So, you're argument is "we used to unjustly kill juveniles, but we're real careful now." Hardly convincing.
-----Like the majority of justices on the court, the Times are imposing a “global test” on the Constitution.
Are you suggesting that this is somehow a question solely relevant to the United States? Is the morality of executing a juvenile different in Germany than in the United States? If nations that share a common heritage and philosophical underpinning ban a practice, that is to be irrelevant to one's constitutional analysis? Can the Supreme Court not quote Aristotle, because he wasn't American? This isn't a global test - a global test would be to suggest that because another country bars the practice, we must as well. But that isn't suggested at all - instead a reference is made to the general moral question, which is universal.
I personally don't care whether we spark this guy or not. I have no sympathy for him.
But it amazes me what passes for logic in conservative circles.
Posted by: Christine G on March 4, 2005 12:08 PM"evolving standards of decency that mark the progress of a maturing society," Trop v. Dulles, 356 U.S. 86, 101 (1958)
What are we evolving to? There are more and more absolutely horrific murders every day. The news just gets worse and worse.
Want a baby? You no longer need to have one, you can simply grab an innocent pregnant woman, kill her and cut the baby out of her. You should do the cutting first so the baby's oxygen isn't cut off.
Mad because your bus driver turned you in for using smokeless tobacco, just bring a gun the next morning and kill her! Who knows, you might even get extra kudo's when you play your X-box online with your friends as you practice your shooting skills.
Everyone is outraged over nude photos of Iraqi detainees, but we barely blink an eye when American's get their heads slowly sawed off on worldwide TV~!
The liberals want to rant and rave about the Kofi Annan UN declared illegal war, but say nothing about the UN criminals padding their checking accounts with money for Iraqi food. Where is the outrage over European UN peacekeepers raping little 7 year old girls in Congo?
One French man was returned to France for raping over 100 preteen Virgins. He has destroyed over 100 lives and he deserves to be treated with dignity and respect? He deserves to be castrated, nothing less.
Civilized? Evolved?
Gimme a break! We've been nice and socialized for way too long.
There has to be personal consequences to keep our behaviors in check, without them, the arrogant will continue with their crimes!
Posted by: sgmmac on March 4, 2005 12:40 PM---You're kidding, right? Are you suggesting that a judge doesn't become wiser with experience? Are you suggesting that, if someone closely examines a question twice, their second conclusion will be not be deeper and more well-considered, if only from the additional hours, if nothing else?
I cannot give categorical answers to questions to individualized cases bringing in a number of contingent factors into play. Never did I say that those who re-consider questions are always wrong. Most judges probably do become wiser with experience, while others might not. If someone closely examines a question twice, their second conclusion can certainly be a better informed and more likely correct conclusion. But that must not always be the case.
Further, I think it debatable as to whether judges become wiser with experience. While I would generally expect jurists with greater experience to become better at analyzing law and arriving at decisions with, some serious concerns about the cultural atmosphere that judges inhabit have been raised. I do not ask you to take my word for it. But such prominent jurists as Learned Hand have raised such concerns. More recently, Ninth Circuit Court of Appeals Judge Andrew Klienfeld discussed the insulation of many federal judges at the Puget Sound Federalist Society Chapter’s Annual Dinner this past November. He stated that many judges seldom interact with ANYONE other than other judges and law clerks who exhibit the latest in fad thinking of significantly left-leaning law schools. Max Boot discusses the “Greenhouse Effect” in his book Out of Order—describing the peer pressure influence on judges that comes from other judges, from academics and legal commentators.
---How does the obvious fact that a judge may change his mind undermine the rule of law? Obviously, a person can come to a better understanding of the law. It is unlikely that a judge, over time, would understand the law less rather than more.
Never did I say that a judge changing his mind on an issue amounts to an undermining of the rule of law. My initial posting allowed for both a degree of subjectivity in judicial decision-making and judicial mind-changing as being entirely consistent with the rule of law.
Most judges probably do have a better understanding of law over time. I won’t argue against that. But a judge can change their mind in such a way so as to adopt a position that is less defensible than the position they initially held. Judge Robert Bork, for instance, wrote a famous article in the Indiana Law Review in the early 1970s about free speech. He later came to repudiate some of the views he expressed there as unworkable. Perhaps he came to a more enlightened position. But perhaps he was wrong. In fact, Prof. Eugene Volokh has said that he thinks Judge Bork’s earlier writings are far more impressive than his later writings.
I do think that judges—just like politicians or corporate CEOs—can be heavily influenced by their own power, and that THIS fact can lead even the most temperate jurists astray in their decision-making. Even in spite of their advanced and increased knowledge and experience. But this is nothing new. Our constitution anticipates this, providing for a separation of powers, and a system of checks & balances. The authors of The Federalist certainly recognized this.
---If Judge Kennedy had a reputation for being a flip flopper, you may have a point - your argument could be, "look, the guy's just making it up as he goes along." But, if the evidence is on the side of Judge Kennedy's consistency, then the fact that he changed his mind would be a factor indicating that the decision was
particularly reflective.
My issue with Justice Kennedy is not so much about flip-flopping per se, but about making landmark constitutional rulings establishing completely novel categorical rules on scanty evidence. I don’t think there is solid evidence on Justice Kennedy’s side that a reasonable interpretation of the Eight Amendment (as applied to the states through the 14th Amendment) categorically prohibits convicted 16- and 17-year-old perpetrators of heinous crimes from being executed in a manner prescribed by law.
---Is the trial court uniquely qualified to judge sociological or psychological studies? I think not. Are Scalia's studies better? I don't know. Cherry-picking is in the eye of the beholder.
Trial courts are a necessary function of our adversarial system. Both parties submit evidence to an impartial fact-finder who assesses the validity and strength of each side’s arguments and enters findings of fact upon which a decision is made. Appellate courts decide issues of law, not issues of fact. (Even when federal appellate courts engage in “constitutional fact review” they review the facts that were presented at the trial level and draw their own legal conclusions based upon THOSE facts. But that did not take place here.) THIS is what I was getting at. I’m not impressed with Justice Kennedy’s recital of a handful of studies mentioned in some amicus briefs as conclusive enough to make such a sweeping decision.
---Scalia could be right, but just because he said it, doesn't make him right.
I agree with Justice Scalia often, but I disagree with him on issues, as well. No justice is an infallible interpreter of the constitution.
---Now you're being positively silly. The constitutional amendment LOWERED the voting age. Seventeen year olds have never be able to vote. The court's point is that seventeen year olds have never been considered fully legally responsible for their actions, not that all age limitations be set by constitution amendment.
My post was primarily a critique of the Times editorial, and my remarks concerning the voting age comparison to the death penalty wasn’t concerned with the issue of age. Rather, it concerned the creation of constitutionally-enshrined categorical rule-making. The Times editorial intimated that since we don’t let 17 year olds vote, we shouldn’t let them be put to death for horrible crimes. It would be a legit argument, except for the fact that creation of such bright-line ruling is best served through the legislative & constitutional amendment process, rather than by judicial decision.
---How does this make any sense? We used to execute X juveniles a year, and now we execute some number less than X. Let's concede that this is evidence that juries, et al, are being more careful in deliberations. How does this help the case? Doesn't it show that we executed too many before, and the trend is to execute fewer rather than more? If that is the case, then clearly there are special concerns surrounding the executions or juveniles that have not always been respected by the process. So, you're argument is "we used to unjustly kill
juveniles, but we're real careful now." Hardly convincing.
Please re-read my words. Carefully. I don’t consider this argument conclusive EITHER WAY. The Times argued that less executions of juveniles proved their point. My response was: no it doesn’t; the argument could also go the other way. In other words, I was saying that the frequency of executions of those under age 18 is inconclusive to the constitutional issue.
---Are you suggesting that this is somehow a question solely relevant to the United States? Is the morality of executing a juvenile different in Germany than in the United States? If nations that share a common heritage and philosophical underpinning ban a practice, that is to be irrelevant to one's constitutional analysis? Can the Supreme Court not quote Aristotle, because he wasn't American? This isn't a global test - a global test would be to suggest that because another country bars the practice, we must as well. But that isn't suggested at all - instead a reference is made to the general moral question, which is universal.
The interpretation of the Eight Amendment of the U.S. Constitution is a question solely relevant to the United States. The related, moral question about capital punishment and murders under the age of 18 is not. Never did I say that the Court could cite the classics or foreign courts or laws, or discuss the idea of universal moral principles.
But we do agree on the definition of a global test for the constitution, and I think such a global test is part of what is involved in this case—and most definitely in the Times editorial.
---I personally don't care whether we spark this guy or not.
I do. If he was guilty of the crime and morally culpable, then he deserves a punishment proportional to the gravity of the act he committed. (If the court had gone on to discuss the concept of proportionality in greater detail, I probably would have been more sympathetic. I think proportionality is an important consideration in this matter.)
By the way, I consider the strongest critique of the death penalty to be the one raised by Headless in an earlier comment. The death penalty has a finality to it and there is the risk that innocent persons can be convicted. But this is not a moral criticism of the death penalty, but a prudential concern. Namely, given the fallibility of human beings and institutions, can we be confident enough in our system of justice to administer this kind of penalty. But given our system of checks & balances, our adversarial system, etc.—and in light of increasing technological understanding—I think that capital punishment can be administered with confidence.
Speaking of which, Headless Lucy, I’ll again note your earlier comment:
---Making a distinction between the rule of man and the rule of law is a sophistry, since it is man who makes and interprets the laws. This is a truism that is well known by corporate lawyers, Washinton lobbyists, and conservative bloggers.
Your remarks caused me to think back on Plato's depiction of Socrates discussions with Thrasymachus and Callicles about the nature of justice in The Republic. Thrasymachus argued that justice is only the rule of the strong over the weak and Callicles argued that there is no such thing as transcendent justice, but only human convention. Through Socrates, Plato argued that transcendent ideas of justice do exist.
I think that true, categorical principles do exist, and that that is the only way that law makes sense. Indeed, an appeal to the logic of universial principles is a crucial ingredient to law-making. But I did acknowledge the subjective human factor involved, too. You may disagree, but seeing as this debate has gone on for centuries that wouldn't too much surprise me either.
Posted by: Seth Cooper on March 4, 2005 01:38 PMActually, crime is down, murder is down. Because cable news (MSNBC, FOX, CNN) live off of excess, you hear more about the bad stuff, but overall, we are in a much safer society now than 15 years ago. Don't give into the fear, it is there (like most fear) to manipulate you. To quote a truly great President, the only thing you have to fear is fear itself.
Posted by: JDB on March 4, 2005 01:40 PMAs to the first point, certainly Kennedy (or anyone else) could be wrong the second time around. I would think that the common presumption would be the opposite, but your disagreement isn't unreasonable.
I still strongly disagree with the notion that the court can't set an age cutoff under the Eighth Amendment. Removing this from the emotionalism of heinous crimes, let's say that a state passes a law providing that a seven year old can be jailed in an adult facility for five years for a first offense of shoplifting. Wouldn't the court be entirely justified in saying that putting a seven year old in an adult facility for a nonviolent crime is categorically an instance of cruel and unusual punishment? If not, does the phrase have any meaning to be enforced by the court?
As to proportionality, I have a different take. My main concern is always keeping murders out of civilized society. Whether death is the greatest punishment is to be judged by the defendant himself. Lots of these types feed off the media attention of an execution, and can feel they are martyrs or celebrities. Some of them want to die. They aren't well for the most part, and I think being ignored in a cell may be worse punishment than death for many of them, and frankly, I don't think the concept of punishment even registers with them as it does with most of us. It's similar to the fiction that the courts indulge in that money can compensate for injury - it can't, just as no punishment can ever fit the crime of murder.
Posted by: Christine G on March 4, 2005 02:29 PMI am not living in fear. Although that is hard to determine with some people, since everyone reacts to danger differently. Everyone also deals with daily fears differently.
My boss in the first Gulf War and I both pretty much had opposite reactions to the dangers of being in a combat zone. Her personality changed quite a bit and she started taking a lot of risks. She was convinced we were going to die and since we were; she was going to die happy!
I refused to believe that we were going to die and I didn't do anything differently. Some caution might have served me better, to not recognize a danger can be quite deadly.
As far as crime being down and murder being down. Maybe so, I am not a statistics person really. The murders today are gruesome, but worse than that, the killers are not remorseful whatsoever. The kid killers today are emotionally dead! People are being killed for the most ridiculous reasons now. Our kids and our society are becoming immune to death and killing.
It does seem to me that our kids are much more violent and prone to kill than in previous times.
Hip Hop, Rap, video games? Maybe, maybe not. I do know that we are not evolving to be nicer to each other.
Every person, young or old, is different and they need to be treated differently. I strongly believe in let the punishment fit the crime. It also needs to fit the sitution and the person committing the crime. "One size fits all" doesn't work well with punishment. One doesn't magically mature into an adult at 18. Lee LLoyd Malvo deserves the death penalty. The killer in the case the Supreme Court decided deserved the death penalty.
As I am typing this, O'Reilly just said that a Marine back from Iraq just gunned down a police officer in California. I spent 30 years in the Army and this is not an unusual occurance. It's called Combat Stress. Every soldier comes back changed, full of stress, and on edge. It causes many divorces and in extreme cases, murder.
Our courts make many conflicting and crazy decisions concerning mental capability.
Do you know that if I get drunk and drive and kill 4 people that I am held legally responsible for my behavior?
Do you also know that if I get drunk and get wild and crazy and have sex with some man, that the next day, I can call the police and tell them that I was raped? And in most states that man is going to jail for rape. The reason is because I was drunk and courts believe that a drunk female can't give her consent.
So the courts will hold me responsible for my behavior if I drive drunk, but not hold me responsible for my behavior if I have drunk sex!
Bad Supreme Court decision!
As a general matter, perhaps the court might be able to define a bright-line standard concerning age under the Eight Amendment (as applied to the states through the Fourteenth). However, I think this would have to be approached with extreme caution, since the primary issue isn't so much AGE as it is AGENCY.
As I have said, the difficulty I have with the most recent decision is its insinuation that ALL 16- and 17-year olds lack the moral culpability for the degree of punishment exacted through the death penalty. I think it wholly lacking in evidence and contrary to our everyday experience to so hold. In my view, juveniles of this age are generally have the competence to appreciate the nature of their actions and the likely consequences, and commit a volitional act (with that knowledge).
However, the situation is different with very young children--which you discuss in your prior comment. The scenario you discuss raises two distinct issues, I think. One has to do with agency and the other with proportionality.
It seems wholly disproportionate to jail someone with such a harsh sentence for a non-violent act of that sort. Such a punishment would certainly seem beyond what is usual for such a crime. And most likely cruel, too.
Back to agency. Most persons would concede that all or nearly all young children do not possess the requisite capacity to understand the nature and likely consequences of their actions or to fully control their impulses. If no such young children possess that capacity, then a rule based upon age may truly be considered a legitimate categorial rule. (Of course, the central issue is still the child's lack of culpability, rather than their age.)
However, if a few rare children of that age possess the requisite capacity, then it can't truly be labelled a categorical rule. But such instances would likely be so rare as to allow us to use age as the best available benchmarker or guide in crafting a legal rule. The rule would acknowledge that perahaps a few children could be morally culpable for their transgressions, but that the likelihood of determining such culpbability who be so unlikely and the mere openness to this possibilty could open the door to serious injustices through the prosecution of non-culpable children. I think most persons would accept that. (But agency would still be the underlying issue.)
I should be very careful with the use of the terms "categorical" and "rules." To be clear, I do not take issue with the courts adopting rules or categorical rules through constitional decisions, per se. Courts routinely craft rules or categorical rules--in a variety of areas.
My contention here is that age itself does not serve as a useful categorical rule, given the generally understood level of development of juveniles aged 16 and 17, and given the nature of the acts committed.
There is also a prudential aspect, given the nature and frequency of the act of murder. First, I believe that the willful taking of an innocent person's life is such an egregious crime that the forefeiting of the murder's own life is always or most always the proportionate punishment. Given the magnitude of the crime being discussed here, however, it would seem that an individualized determination is merited. I believe a proportionate punishment can be reasonably administered in these cases, and that a rule that wouuld sweep aside any all attempts would create more injustice than the complete elimination of the death penalty for this group of perpetrators.
Second, few persons commit murder. Whereas I know many people who, say, vote, I only know of one guy I went to high school with who went on to commit murder. So I think it would be far more efficient and practical to craft a categorical rule concerning voing age.
I don't know if I'm entirely satisfied with my own comment. And perhaps it is scatterbrained. But its Friday night and I gave it my best stab. I'm done.
Posted by: Seth Cooper on March 4, 2005 09:32 PM