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:

Your Honor:

Once in England they hanged children seven years of age. They weren’t necessarily hanged for punishment, because hanging was never meant for that; it was meant for exhibition…

Why did they kill Bobby Franks? Not for money, not for spite, not for hate. They killed little Bobby Franks as they might kill a spider or a fly, for the experience.

They killed him because they were made that way.

Because somewhere in the infinite processes that go to the making up of the boy or the man, something slipped, and these unfortunate lads sit here hated, despised, outcasts, with the community shouting for their blood.

What is the public’s idea of justice?

"Give them the same mercy that they gave to Bobby Franks."

Is that the law? Is that justice? Is this what a court should do? Is this what a state’s attorney should do? If the state in which I live is not kinder, more humane, more considerate, more intelligent than the mad act of these two boys, I am sorry that I have lived so long.

They say we come here with a preposterous plea for mercy. When did any plea for mercy become preposterous in any tribunal in all the universe? I am not pleading so much for these boys and I am for the infinite number of other to follow, those who perhaps cannot be as well defended as these have been, those who may go down in the tempest without aid. It is of them I am thinking and for them I am begging of this court not to turn backward toward the barbarous and cruel past.

I do not know how much salvage there is in these two boys. I hate to say it in their presence, but what is there to look forward to? I do not know but that your honor would be merciful if you tied a rope around their necks and let them die; merciful to them, but not merciful to civilization, and not merciful to those who would be left behind.

Your honor, none of us are unmindful of the public. I cannot say how people feel. I have stood here for three months as one might stand at the ocean trying to sweep back the tide. I hope the seas are subsiding and the wind is falling, and I believe they are, but I wish to make no false pretense to this court. The easy thing and the popular thing to do is to hang Dickie Loeb and Babe Leopold. I know it. Men and women who do not think will applaud. The cruel and thoughtless will approve. It will be easy today; but in Chicago, and reading out over the length and breadth of the land, more and more fathers and mothers, the humane, the kind and the hopeful, who are gaining an understanding and asking questions not only about these poor boys, but about their own – these will join in no acclaim at the death of my clients. They would ask that the shedding of blood be stopped, and that the normal feelings of man resume their sway.

But, Your Honor, what they shall ask may not count. I know the easy way. I know your honor stands between the future and the past. I know the future is with me, and what I stand for here; not merely for the lives of these two unfortunate lads, but for all boys and all girls; for all of the young, and, as far as possible, for all of the old. I am pleading for life, understanding, charity, kindness, and the infinite mercy that considers all.

I am pleading that we overcome cruelty with kindness, and hatred with love. I know the future is on my side. You may hang these boys; you may hang them by the neck until they are dead. But in doing it you will turn your face toward the past. In doing it you are making it harder for every other boy who in ignorance and darkness must grope his way through the mazes which only childhood knows. You may save them and make it easier for every child that sometime may stand where these boys stand. You will make it easier for every human being with an aspiration and a vision and a hope and a fate. I am pleading for the future; I am pleading for a time when hatred and cruelty will not control the hearts of men. When we can learn by reason and judgement and understanding and faith that all life is worth saving, and that mercy is the highest attribute of man.

I feel that I should apologize for the length of time I have taken. This case may not be as important as I think it is. If I should succeed in saving these boys’ lives and do nothing for the progress of the law, I should feel sad, indeed. If I can succeed, my greatest reward and my greatest hope will be that I have done something for the tens of thousands of other boys, for the countless unfortunates who must tread the same road in blind childhood that these poor boys have trod – that I have done something to help human understanding, to temper justice with mercy, to overcome hate with love.

I was reading last night of the aspiration of the old Persian poet, Omar Khayyam. It appealed to me as the highest that I can vision. I wish it was in my heart, and I wish it was in the hearts of all.

So I be written in the Book of Love,
I do not care about that Book above;
Erase my name or write it as you will,
So I be written in the book of Love.

 

Related Link: Roper v. Simmons, at:
    http://a257.g.akamaitech.net/7/257/2422/01mar20051300/www.supremecourtus.gov/opinions/04pdf/03-633.pdf