Topic: Professions & Institutions
The Supreme Court Considers Executing Minors
The U. S. Supreme Court’s ruling in Roper v. Simmons is of historical and legal importance because it bans the execution of minors as unconstitutional. The decision is important ethically as well, because it shows our highest court struggling with the core question in ethics: how does one determine what is right and what is wrong?
Justice Kennedy, writing for the typically, for this Court, razor thin 5-4 majority, explores national trends and statistics to determine whether the practice of executing those who commit capital crimes as juveniles (the teenage accomplice of Washington, D.C.s Beltway Sniper is a very current candidate) violates the prohibition of the 18th Amendment against "cruel and unusual punishment." And well he might. While "cruel" is matter of subjective judgement, at least until the Supreme Court re-defines it as a matter of law, "unusual" is subject to objective determination.
20 of the 30 states permit juvenile executions, which argues against the "unusual" label. But in the last decade only three of the 20 (Texas, Oklahoma and Virginia) have actually executed a minor, which argues for it. With "unusual" too close to call, the Court’s decision fell back on "cruel," and Kennedy correctly noted that standards of decency change and evolve over time. Many practices, penal and otherwise, considered appropriate in 1800, 1900, 1950 and even 1990 are considered unconscionable today. The Court recently struck down one of those in the Atkins case, ruling that it was "cruel and unusual" to execute a mentally retarded capital offender. Clearly extrapolating from that decision, and taking the position that, in the end, the Court has to make its own judgements about what is cruel and indecent, the majority in Roper decided that a crime committed by a minor, no matter how horrible it may be, cannot justify taking a life of a child.
Surprisingly, at least to this perhaps soft-hearted father and lawyer, the conservative establishment reacted to the decision with horror. Inspired by the stinging dissent of the always stingingly dissentful Justice Scalia, such pundits as Laura Ingraham mocked the idea that the Justices’ concepts of right and wrong should trump those of 20 state legislators. Scalia denies that that the Constitution or any case precedent permits the Supreme Court to decide that what the majority of Americans or the majority of state voters say is right and proper is in fact "cruel and unusual."
I count myself as an admirer of Scalia (full disclosure: I once had a drink with "Nino,’ and he’s a hoot), but I have to say that this is where the advocates of the "original intent" school of constitutional interpretation run aground. Clearly, the Supreme Court cannot accept an "everybody does it" standard for what is right and good by Constitutional standards. "Everybody" used to beat confessions out of suspected criminals. "Everybody" in whole regions of the country used to refuse to let black Americans go the white schools. "Everybody" once declared sex between blacks and whites, men, or unmarried adults illegal. Correctly, and fortunately for the country, the Supreme Court has had the courage to declare these and many other practices not merely wrong-headed, but ethically wrong.
I know the mantra of conservatives is that courts have no right to over-rule the duly exercised will of the people, and beyond question, courts have and do abuse their discretion in this regard. But determining that the execution of children is cruel as a matter of law is hardly such abuse.
Scalia’s dissent does make one very good point, and that is that the majority opinion’s use of international opinion and foreign laws to bolster its decision is inappropriate. England is not America, needless to say; I believe we fought a war or two to prove that point. France, Germany, Sweden, Oz…different cultures, different systems, different traditions, different views of the world. It is this feature of the Roper decision, perhaps, that alarms critics, who see it as a prelude to the abolishment of all capital punishment entirely with the argument that "the civilized world opposes it." This is not the time to take on that epic controversy in the Scoreboard, except to point out that when a country like Germany sentences a man who killed and ate a stranger he met on the internet to just twelve years in prison (I kid you not!), it should be obvious that the European concept of appropriate justice has serious deficiencies as a model for emulation.
Finally, as final food for thought regarding the Supreme Court ruling, the Scoreboard presents, slightly edited, the definitive argument against executing minors (and yes, Laura, adults too): Clarence Darrow’s immortal closing argument in defense of the teenage thrill killers, Leopold and Loeb. Both rich and brilliant, they murdered Loeb’s cousin, a child, Bobby Franks, just to prove that they could pull off the "perfect crime." With the entire city of Chicago screaming for their blood, Darrow convinced the judge in the 1924 trial to let them live. Here’s what Darrow, by acclamation the greatest of all American trial lawyers, said:
Related Link: Roper v. Simmons, at: