Another week, another fresh chronicling of horrors
emanating from Washington. But to mix it up a little,
and because I’m still bitter about that whole
electoral process thing, let’s go for some unelected
members of government—my favorite nine gown-clad
people in the world, the Supreme Court!
This year promises to be very interesting, particularly
with the recent announcement that the Court will be
hearing cases regarding the display of the Ten Commandments
in government buildings, but there is truly no end
to the choruses of “you have got to be kidding,
people actually argue that’s constitutional?!”
A couple of weeks ago, the Court heard Roper v. Simmons,
in which the best and brightest legal minds in the
nation debated whether the US government should remain
in the heady (and exclusive!) fraternity with other
bastions of liberty such as Iran and China in executing
children.
That’s right, yet another death penalty case:
this time questioning the constitutionality of executing
16 and 17-year olds. Luckily for the younger crowd,
those 15 and under have been ineligible for capital
punishment since 1988, while in 1989 Stanford v. Kentucky
stipulated that putting those pesky tween-agers to
death was all right.
The problem with this, and most other, death penalty
cases is that it is one of the few areas of constitutional
jurisprudence in which opinion, rather than principles
of law, enter into the argument. Most people know
that the Eighth Amendment to the Constitution, prohibiting
“cruel and unusual” punishment, would
be the binding bit of constitutional law through which
to determine whether a particular type of punishment
(such as execution) is legal. The crux of the argument,
obviously, is what specifically “cruel and unusual”
means. And as of Trop v. Dulles back in 1958, the
Supreme Court must determine what the “evolving
standards of decency” are for American society
in order to determine whether a practice is cruel
and unusual.
In terms of the chances for 16 and 17 year olds committing
crimes eligible for the death penalty, this is a mixed
bag. On the one hand, outliers such as Clarence Thomas,
who is probably just peachy with drawing and quartering
criminals (as long as Scalia and Rehnquist say it’s
okay, that is) can be somewhat mitigated by the presumably
more sane and reasonable members of society. And indeed,
there is a near-universal consensus that killing children,
even almost-adult children, is abhorrent. The case
brought out an unusually international flood of amicus
curiae briefs supporting abolition of the practice
and chronicling international practices to demonstrate
that other societies—even those we wouldn’t
consider paragons of moral virtue—have a higher
standard of decency, at least compared to us.
Consider the shortlist of countries that have executed
teenagers since 1990: Iran, Saudi Arabia, Nigeria,
the Democratic Republic of Congo, Yemen, Pakistan,
China, and of course, the United States. To add to
our roll of accomplishments, since 1990 the US has
executed more children than the other seven countries
put together. And since 1990, all of the other countries
have committed to ending execution of juveniles (although
there is some debate over possibilities that three
of those countries executed three juveniles in the
last few years). This makes the United States the
only—I’ll repeat, THE, as in ONE, as in
ONLY—country to refuse to ratify the United
Nations Convention on the Rights of the Child. (I
guess the right-wingers only care about children BEFORE
they are out of their mother’s uterus.)
Even within the US, there seems to be an overwhelming
distaste when it comes to sentencing kids to capital
punishment for offenses committed while they can’t
yet vote, buy cigarettes, buy lottery tickets, or
serve on the very juries (“of their peers,”
natch) that might convict them. Since 1994, only three
states have executed minors: Oklahoma (2), Virginia
(3), and, (drum roll), Texas (11).
The course of oral argument, at least where questions
from the Justices were concerned, was fairly predictable.
At least four votes to abolish the practice are certain:
Justices Ginsburg, Breyer, and Souter joined a dissent
written by Justice Stevens in 2002—an unusual
dissent in that it was not even to a case argued before
the court, but dissenting from the denial of writ
of certiorari that would have allowed the Court to
hear the case. Stevens and his three co-signers issued
a strongly-worded call for the Court not only to hear
such cases, but to overturn the earlier decision permitting
executions of 16 and 17 year olds, quoting Justice
Brennan’s dissent from Stanford extensively.
Just as certain are three votes to keep on killing
teenagers: Justices Scalia, Thomas, and Chief Justice
Rehnquist might as well have hung a Texas flag behind
their seats in court and led a cheer of “Faster,
pussycat, kill, KILL!”
This leaves Justices Kennedy and O’Connor:
the two swing votes in Atkins v. Virginia from two
years ago, that finally abolished executions of the
mentally retarded. Most of the oral arguments seemed
directed at their two votes, and the bulk of the analysis
has focused on their questions (all but one of them
Kennedy’s). So we are once again in the sad
position of having two voices to decide what all of
the rest of our “evolving standards” are.
I don’t really like the formulation of the
“evolving standards” argument, although
I agree with it in principle. I think it’s clear
that the Constitution was not meant to be a literal
and temporally-fixed document; that’s why the
Founders wrote “cruel and unusual” rather
than “burning at the stake good, thumbscrews
bad.” But the language regarding societal standards
in general is, in my opinion, frankly too majoritarian.
If the Constitution was meant to be a periodic referendum
on public opinion, we wouldn’t need the Constitution,
we could just annually have a national vote on what
kinds of executions Americans do and don’t like
for this season. Rather, the evolving standards of
the Constitution must be evolving legal standards;
evolving standards of the larger principles that the
Constitution is meant to embody.
My own legal quibbles, however, are irrelevant in
this case. It is eminently clear from both domestic
and international opinion and actions that the United
States stands truly alone on this issue, and it is
just as clear that the earlier case should be overturned.
As the state of Alabama was so kind to point out in
their own amicus brief (favoring execution of minors),
there are plenty of horror stories of crimes committed
by minors. The case of Christopher Simmons himself,
who abducted a woman, bound and gagged her, and then
threw her off a bridge to drown, is sickening. But
playing on the fears of extraordinary crimes—as,
I am sad to say, our government does all too often—is
not a solution.
Rather, we must ask tougher questions. During an
internship I held with the Department of Justice,
I visited a juvenile detention center, and interacted
with many teenagers who had committed serious crimes.
There were children in the facility who had killed,
and I have no doubt in my mind that I would do quite
a lot to keep them away from my loved ones. But I
also read the case histories of most of those children.
And I would do quite a lot to keep my loved ones from
going through what they went through.
That should be the crux of the issue. Rather than
trying to sweep the bodies of executed teenagers under
the rug, we as a society need to ask ourselves what
is going wrong that children can commit such crimes.
This is not to say that all murders can be prevented,
or that we should absolve them of all responsibility
because they weren’t quite of legal age. But
when Alabama has a roll of teenage killers ready to
whip out for the Supreme Court to justify a firing
squad, it makes me wonder why they aren’t poring
over that roll trying to figure out why the young
people of Alabama are going so wrong.
It is to be hoped that Justices Kennedy and O’Connor
will recognize this: that the bloodlust of a few—really,
just one—aberrant state to effect capital retribution,
even against children, has become repugnant to virtually
all other people on earth. That the Constitution was
not meant to allow America to be in a class of its
own brutal self on the world stage. And that teenage
killers should not make us reach for the noose, but
for a mirror.
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