Posted on Tue, Mar. 01, 2005

High court ends death penalty for youths

HOPE YEN
Associated Press

WASHINGTON - The Supreme Court ruled Tuesday that the Constitution forbids the execution of killers who were under 18 when they committed their crimes, ending a practice used in 19 states.

The 5-4 decision throws out the death sentences of about 70 juvenile murderers and bars states from seeking to execute minors for future crimes.

The executions, the court said, were unconstitutionally cruel.

It was the second major defeat at the high court in three years for supporters of the death penalty. Justices in 2002 banned the execution of the mentally retarded, also citing the Constitution's Eighth Amendment ban on cruel and unusual punishments.

The court had already outlawed executions for those who were 15 and younger when they committed their crimes.

Tuesday's ruling prevents states from making 16- and 17-year-olds eligible for execution.

Justice Anthony Kennedy, writing for the majority, noted that most states don't allow the execution of juvenile killers and those that do use the penalty infrequently. The trend, he noted, was to abolish the practice.

"Our society views juveniles ... as categorically less culpable than the average criminal," Kennedy wrote.

Juvenile offenders have been put to death in recent years in just a few other countries, including Iran, Pakistan, China and Saudi Arabia. All those countries have gone on record as opposing capital punishment for minors.

The Supreme Court has permitted states to impose capital punishment since 1976 and more than 3,400 inmates await execution in the 38 states that allow death sentences.

Justices were called on to draw an age line in death cases after Missouri's highest court overturned the death sentence given to a 17-year-old Christopher Simmons, who kidnapped a neighbor in Missouri, hog-tied her and threw her off a bridge. Prosecutors say he planned the burglary and killing of Shirley Crook in 1993 and bragged that he could get away with it because of his age.

The four most liberal justices had already gone on record in 2002, calling it "shameful" to execute juvenile killers. Those four, joined by Kennedy, also agreed with Tuesday's decision: Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen Breyer.

Chief Justice William H. Rehnquist and Justices Antonin Scalia and Clarence Thomas, as expected, voted to uphold the executions. They were joined by Justice Sandra Day O'Connor.

Currently, 19 states allow executions for people under age 18: Alabama, Arizona, Arkansas, Delaware, Florida, Georgia, Idaho, Kentucky, Louisiana, Mississippi, Nevada, New Hampshire, North Carolina, Oklahoma, Pennsylvania, South Carolina, Utah, Texas and Virginia.

In a dissent, Scalia decried the decision, arguing that there has been no clear trend of declining juvenile executions to justify a growing consensus against the practice.

"The court says in so many words that what our people's laws say about the issue does not, in the last analysis, matter: 'In the end our own judgment will be brought to bear on the question of the acceptability of the death penalty,' he wrote in a 24-page dissent.

"The court thus proclaims itself sole arbiter of our nation's moral standards," Scalia wrote.

Thank God we have the collective wisdom of five lawyers to tell us how, as Scalia writes, "the constitution has changed" in the past fifteen years. Today I get to call the parents of a nineteen year old girl and a twenty-nine year old man and tell them that beacuse the person who executed their children had the good sense to do it five months before his birthday we cannot exact the full price for his crime.

If juveniles are "categorically less culpable" solely by reason of their age, why are the same penalties permitted to be assessed against them as those who are older and wiser? Are they categorically less culpable only with respect to the types of murder previously chosen as "death-worthy"? It certainly seems the court has given the defense bar a reasonable argument for any offense committed by a juvenile.

I agree that the court's apparent second ground for striking the juvenile death penalty is troublesome. They could have rested on the "evolving standards of decency" argument and the 8th Amendment without turning youthfulness into an as-a-matter-of-law mitigating circumstance. What other objectively measurable factors should be treated the same? IQ level--what number do you pick? Education level--what grade do you have to pass before you're responsible enough to know not to hog tie someone and throw them off of a bridge?

Like Atkins before, Simmons is intellectually indefensible as jurisprudence. This opinion is yet another example of the ends justifying the means. That's why Scalia's dissent is so entertaining and yet sadly correct. Five justices of the Supreme Court have usurped the democratic process and declared themselves to be (at least as far as the 8th Amendment is concerned) the final moral compass of our nation. The will of our Legislature and the people who elected them be damned.

This decision should come as no surprise although I'm very disappoiunted in Justice Kennedy (imagine Ronald Reagan's disappointment and surprise at his appointee). It is merely an extension (albeit a sad and unncessary one)of the Court's reasoning in the Atkins case. The campaign to abolish the death penalty, bit by bit, continues. Five members of the court have again substituted their 'progressive' political beliefs for the collective, democratic decisions of the duly elected legislatures in many states.

Not so long ago, legislatures were empowered to detect and react to popular trends. They passed laws that were supported by the majority. No more. Now, five jurists declare themselves morally superior to make these laws. No need for elections, debate or representative government.

What's next? The age of 18 is no more magic than the age of 16. How long will it be before the 'progressives' decide that an 18 year old is too immature to appreciate the death penalty? How about the elderly? Surely the EU, human rights advocates such as the ACLU and Amnesty International disapprove of this too. And how about the 'mentally ill'. The same arguments can be made on their behalf. And the list goes on and on as far as the 'progressive' eye can see.

Barring some change in the court, it's only a matter of time before the 'progressive' jurists come out of the cloak room and declare their real belief and ultimate goal - that the death penalty itself violates their cherished 'evolving' standards of decency. We shouldn't be surprised if it happens.

I've already heard several attorneys gushing with excitement about the Court's decision because, "if you cannot die for your county, you should not be eligible to be put to death". Scalia again said it best for all of those who have similar excuses when he said:

That "almost every State prohibits those under 18 years of age from voting, serving on juries, or marrying without parental consent," is patently irrelevant --- and is yet another resurrection of an argument that this Court gave a decent burial in Stanford. (What kind of Equal Justice under the Law is it that --- without so much as a "Sorry about" --- gives as the basis for sparing one person from execution arguments explicitly rejected in refusing to spare another?) As we explained in Stanford, it is "absurd to think that one must be mature enough to drive carefully, to drink responsibly, or to vote intelligently, in order to be mature enough to understand that murdering another human being is profoundly wrong, and to conform one's conduct to that most minimal of all civilian standards." Serving on a jury or entering into marriage also involve far more sophisticated than the simple decision not to take another's life.

I suggest that this too includes dying for one's country.

Bad decision, bad precedence.

When we are examining the mores and attitudes of foreign countries to determine "evolving standards of decency," why do we seem never to look to Pakistan, Indonesia, Singapore, North Korea, Iran......it's like the old joke about legislative intent being the judicial equivalent of entering a cocktail party and surveying the room to see if there is anyone you know in attendance.

Whatever a person’s politics, they belong outside of the courtroom, particularly at the Supreme Court. The issue in Roper v. Simmons is not whether or not to allow the execution of people who are under the age of 18. Rational people can agree or not agree about whether this is appropriate. Most people agree that it should be done very rarely. The issue at stake is who gets to make important decisions like this one: unelected leaders who represent the values and mores of the political left (or some other group in the future), or the democratically elected legislatures who are supposed to use their judgment to make the law, the democratically elected prosecutors who are supposed to use their judgment in executing the law, and the Constitutionally selected juries who use their judgment to apply facts to law. We could have a democratic system of government, and have a full discussion of this and other issues in our state capitals and local courthouses, but these debates will not happen because the power to resolve them has been taken away by unaccountable, non-democratic, decision makers. The precedents being set in cases like Roper v. Simmons, in the United States (and in legal systems abroad) in the long term threaten Western democracy. Put at the most basic level, the issue at stake in this case is whether we are going to keep a sustainable democracy and rule of law for future generations, or whether we are going to give them up in the name of the political issues of our era.

[This message was edited by Andrew on 03-02-05 at .]

For those concerned about Simmons and similar recent decisions from the Supremes, may I recommend "Men In Black: How the Supreme Court is Destroying America;" Author: Mark Levin; Publisher: National Book Network. It's available through Amazon and other online book dealers.

If anyone can tell me what happens to the 27 inmates on Death Row that were under 18 when they committed their crimes, I would love to hear it. I have heard quite a few conflicting answers.

1) Governer Perry seems to think it's up to the Texas Board of Pardons and Parole.

2) Others have mentioned permanently staying their execution, but being unable to procedurally make that happen without setting an execution date which isn't going to happen.

3) Some have mentioned CCP 44.251, but that doesn't seem to apply here. Along those same lines, is it up to the CCA to issue some type of reformation?

4) Some have said it's up to the defendant to get the ball rolling through a writ.

5) Some have said there is nothing to do. Just leave them where they are and never set an execution date.

Thoughts?

How about staying the executions until the Supreme Court changes its political views?

This is a bit of a tangent but what if the law was changed so that the moment a kid is certified, he has the option to become auto emanicipated...

Assuming he is acquitted or is release before his 18th birthday, he is free to vote, buy a weapon, join the service, watch a dirty movie, enter into contracts, or whatever else an 18 year old could do.

[edit for spelling]

By Tony Blankley

The U.S. Supreme Court has struck again -- this time overturning by a 5-4 decision, all statutes that apply the death sentence to 16- and 17-year-old murderers.
As a former prosecutor, I am convinced that from time to time juries find before them 16- or 17-year-old defendants who understand full well the vicious nature of their murders, and deserve -- after receiving the full panoply of due process -- to be fried, gassed, hanged, shot, injected or otherwise sent promptly to Hell.
Even if you are of a sympathetic nature and believe that the little 17-year-old darlings deserve to be rehabilitated, you might still find this Supreme Court opinion stomach turning for its sheer disdain of logic, public attitudes and American law.
But first: The crime, as described yesterday by Justice Anthony Kennedy in Roper v. Simmons, writing for the majority: "At the age of 17, when he was still a junior in high school, Christopher Simmons ... committed murder ... There is little doubt that Simmons was the instigator of the crime. Before its commission Simmons said he wanted to murder someone. In chilling, callous terms he talked about his plan with his friends ... Simmons proposed to commit burglary and murder by breaking and entering, tying up a victim, and throwing the victim off a bridge. Simmons assured his friends they could 'getaway with it' because they were minors." A few hours later he proceeded to do just that, breaking into a home, covering the victim's head in a towel, wrapping her up in duct tape and tying her hands and legs together with electrical wire. Then he drove her to a bridge and threw her off into the water, where helpless, she drowned.
The question before the Supreme Court was whether this presented a case of cruel and unusual punishment in violation of the 8th Amendment to our Constitution. No, the court was not concerned with whether being assaulted in your home, wrapped in a towel, duct tape and electrical wire and thrown off a bridge was cruel and unusual punishment. That's OK. The court is only concerned with whether it was cruel and unusual to execute the strapping 17-year-old murderer who did it.
The gist of the majority's analysis is that whether the crime is constitutionally "unusual" depends on whether "evolving standards of decency" have reached the point in our history when such punishment has been clearly rejected by society.
It happens that only 15 years ago the Supreme Court found that the kind of statute in question was constitutional. But, rather than overturning that case, the court yesterday found that in the last 15 years a national consensus against such punishment had emerged.
The majority based that conclusion on the fact that "18 states -- or 47 percent of states that permit capital punishment -- now have legislation prohibiting the execution of offenders under 18," and four of those states have adopted such legislation since the Supreme Court's ruling of 15 years ago.
As Justice Antonin Scalia fumed in his dissent: "Words have no meaning if the views of less than 50 percent of death penalty States can constitute a national consensus. Our previous cases have required overwhelming opposition to a challenged practice, generally over a long period of time." In this case, a majority of relevant states approve the practice.
Recognizing that they were arguing a rather weak set of facts regarding a national consensus, the majority supplemented its argument with the self-aggrandizing assertion that "In the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the 8th Amendment." Outrageously, the court asserts such power because, as Justice Scalia characterized, "juries cannot be trusted with the delicate task of weighing a defendant's youth along with other mitigating factors." This assertion, of course, undermines "the very foundations of our capital sentencing system."
The majority, still sensing its arguments to be rather feeble, went on to try to buttress their case further by citing a menagerie of international treaties and foreign laws, claiming: "The opinion of the world community, while not controlling our outcome, does provide respected and significant confirmation for our own conclusions."
In support thereof they cited, inter alia, the U.N. Convention on the Rights of the Child, a treaty before signing which, the U.S. government expressly reserved "the right ... to impose capital punishment on any person (other than a pregnant woman)." To which Justice Scalia observed in his dissent: "Unless the Court has added to its arsenal the power to join and ratify treaties on behalf of the United States, I cannot see how this evidence favors, rather than refutes, [the majority's] position."
After Justice Kennedy used five pages of his logically incoherent majority opinion to cite a hodge podge of foreign laws, he limply and defensively concluded his opinion: "It does not lessen our fidelity to the Constitution or our pride in its origins to acknowledge that the express affirmation of certain fundamental rights by other nations and people simply underscores the centrality of those same rights within our own heritage of freedom." When a Supreme Court justice feels it necessary to write as the closing words of his opinion that he still holds fidelity to the Constitution, it is more than reasonable to assume he knows he has just betrayed that sacred document. But at least he has vouchsafed his popularity at liberal cocktail parties for another year.

Tony Blankley is editorial page editor of The Washington Times.

A contemporary criticism of the Eighth Amendment was as follows: "If a more lenient mode of correcting vice and deterring others from the commission of it could be invented, it would be very prudent in the Legislature to adopt it; but until we have some security that this will be done, we ought not to be restrained from making necessary laws by any declaration of this kind." Rep. Smith of South Carolina, U. S. House of Representives (8/17/1789)

The word "cruel" refers to pain and anguish, neither of which necessarily accompany death in large degree. Thus, while capital punishment may be considered unjust or disproportionate according to changing standards of decency, it cannot rightly be classed as cruel. The language of the Eighth Amendment no more justifies the decision in Simmons (or Atkins)than that of the Ninth Amendment compelled the decision in another famous case. The wording itself must be changed, and not just the meaning of the words. But, then, there are obviously more ways to amend the Constitution than the document itself provides for. But some of them are slippery slopes.

March 4, 2005
OP-ED CONTRIBUTOR

Cruel and Unusual Jurisprudence
By ROBERT WEISBERG
Stanford, Calif.


BOTH the result and the reasoning of the Supreme Court's decision this week in Roper v. Simmons were heartening to opponents of capital punishment. Not only did the court outlaw the death penalty for those who kill before they turn 18, but its analysis could easily lead to additional constitutional constraints on capital punishment.


Yet it is doubtful that the court will follow the national trend of skepticism about the death penalty any further. More likely, the case is the last exhausted gasp of a very strange jurisprudence that the court will now be happy to put to rest.


The Eighth Amendment prohibits "cruel and unusual punishments," but for much of its history the United States has allowed the death penalty. In 1958, the court ruled that "evolving standards of decency" should define what constitutes "cruel and unusual," and since then it has been forced to confront the legality of capital punishment in various types of cases. Could the death penalty be imposed for nonfatal crimes? When the defendant did not kill intentionally or at least in a manner exhibiting "extreme indifference to human life"?


In answering these kinds of questions (in both of these cases, the response was no), the court committed itself to a challenging set of tasks. First, it would examine the patterns of state laws or court decisions to determine by a rough empiricism whether the death penalty in a particular category has become cruel by virtue of being literally unusual. Of course, this approach raises the perfectly reasonable question of how the scope of the Bill of Rights, which was designed to limit the powers of legislative majorities, could depend in part on the decisions of those very majorities.


Next, the court would consult various other sources for evidence of some sort of moral consensus. In doing so, the court would refer to philosophical or moral principles or political attitudes outside the realm of law altogether - and even to international expressions of moral value. This strategy provokes the (again perfectly reasonable) complaint that unelected jurists are now acting like pollsters, assessing the public's moral values. Or, worse, they are becoming arbiters of moral value themselves.


Three years ago the court used this approach, looking at trends among the states as well as the scientific consensus on the definition and significance of retardation, to strike down executions of the mentally retarded. And this week the court reconsidered how this test applies to the question of age. In 1988, it ruled that defendants who killed before their 16th birthday could not be executed; now the age is 18.


As in earlier cases, the court looked at trends among the states and at legal, scientific and philosophical understandings about when people are mature enough to forfeit their lives for their crimes. What was notable was how candid the court was about two factors that influenced its judgment: the justices' own notions about the morality of executing young killers, and the international condemnation of executing people for crimes committed when they were juveniles.


Justice Antonin Scalia was practically apoplectic in his exasperated dissent. "This is no way to run a legal system," he wrote, denouncing this latest round of trend-spotting as irrational and unreliable. And indeed, the change in attitudes toward age has been far less evident than the change in attitudes toward retardation.


Given Justice Scalia's analytic dexterity and rhetorical brilliance, his dissent is utterly convincing. But it is also completely beside the point. In Roper, the court exposed its somewhat intellectually embarrassing Eighth Amendment jurisprudence. But it did so in order to overcome the greater embarrassment of one last specific, egregious category of capital punishment.


Having noted that only the United States and Somalia had refused to ratify a United Nations convention barring the execution of juvenile criminals, the court's decision comes down to this: on matters of criminal punishment, the United States "now stands alone in a world that has turned its face against the juvenile death penalty." Justice Scalia scorns the court's deference to "the so-called international community" and self-appointed role as the "authoritative conscience of the nation." Yet instead of denying the charge, the court revels in it.


At any rate, there is little prospect of more tortured Eighth Amendment jurisprudence. Executing the mentally ill? The universal availability of some kind of "not guilty by reason of insanity" verdict, and the established constitutional rule that states cannot execute someone "presently insane," mean that this category need not be litigated. Executing those under 21? In Roper, the court was unusually categorical: "The age of 18 is the point where society draws the line for many purposes between childhood and adulthood. It is, we conclude, the age at which the line for death eligibility ought to rest."


Of course, America retains its outlier status, at least compared with most democratic nations, as a nation that allows the death penalty at all. And the court may issue some further decisions fine-tuning procedures or standards of proof for the use of the death penalty, or requiring enhanced guarantees of adequate representation for capital defendants. It would probably take a truly horrifying event, like a post-execution exoneration through DNA evidence, to sway public opinion so much against the death penalty that the court would consider declaring the practice itself unconstitutional.


For now, opponents of capital punishment can hope that state-legislated improvements in criminal procedure and technology, along with political constraints, will address their concerns about wrongful executions. That way, the court will be spared the awkwardness of returning to the cruel and unusual task of assessing America's evolving standards of decency.



Robert Weisberg is a professor of law at Stanford.

Being a misdemeanor prosecutor right now, I have yet to have any experience with any cases that have possible capital ramifications. That being said, I was just curious if there are any numbers or stats out there of "Kiddos" under 18 that were looking at possible DP and that pled out to life (or other) in order to take the Death Penalty off the table. Seems to me that w/o this hammer hanging over their heads, more and more Under 18's will be willing to roll the dice and see what a jury says. The answer to the question "what have I got to lose?" just got a hell of a lot shorter.

I agree with Prof. Weisberg's legal analysis of Roper and Atkins. However, I disagree with his assertion that Roper will mark the end of 8th Amendment litigation. In fact, I believe Roper will only encourage further litigation. Why should opponents stop now when the Court has a rolled out the welcome mat and shown a desire to further weaken and undermine the 8th Amendment? Why stop when victory (which can't be accomplished through legislative means) is so close at hand?

I have observed over the years that liberal advocates such as death penalty opponents are relentless in their pursuit of total victory. They are compelled by their misplaced sense of compassion. They are zealots, and as such, are never satisfied with partial victories and compromise. Total victory in this case is a total ban. I expect them to use every possible avenue, including the Court to accomplish the goal.

Well stated, Greg. I never cease to be amazed at just how fanatical some of these anti-death penalty folks really are. And to hear them talk about it, you would get the impression that these "death row incarcerated killers of innocents" are political prisoners worthy of some sort of public acclaim. See, e.g., Mumia Abu Jamal. To hear them tell it, you'd think we were dealing with an incarcerated Nelson Mandela or Alexander Solzhenitsyn. With that type of mindset, the end justifies ANY means. At the moment, the piecemeal judicial invalidation of democratically established laws seems to be the order of the day. But let their be no doubt, repealing the death penalty for the retarded, juveniles, the establishment of so-called "innocence" projects, reformation of the clemency process, etc.; all of these are mere "stepping stones" to the ultimate objective--the outright abolition of the death penalty. Personal attacks on prosecutors, law enforcement officials, crime lab officials and even the victims or their survivors is all fair game when one feels that his calling is, quite literally, a matter of life and death. It still makes me curious, however, that out of all the legitimate social problems which exist in our modern world (e.g., tsunamis, terrorism, starvation, real political suppression) folks with evidently nothing better to do can get so worked up over a bunch of cold blooded killers.

Given the vitriol expressed in this debate, and the near-unanimity of disapproval for the Supreme Court's decision, I should probably keep my opinion to myself. But then again, it can't really be a debate unless someone's on the other side. So I'll fall on that sword.

First, the Court's decision isn't threatening Western democracy. The Constitution and Bill of Rights consists of words, someone has to decide what they mean. Someone has to decide how young is "too young" just as someone has to decide how many restrictions on gun ownership is "too many." The Court interprets the Bill of Rights, and did so in this case.

Second, there seems to be a sense in the aftermath of this decision that the Court has overthrown the democratic process in some way. My answer to that is: So what? The Bill of Rights and the Court, by their very nature and structure are designed to protect individuals against the power of the majority by overthrowing the democratic process. The Court cannot expand anyone's individual rights without necessarily limiting the legislative rights of the State.

Third, I have to take offense with the notion that banning the juvenile death penalty is somehow "liberal" or "progressive." It is, outside of Texas, a very moderate position. Polling has consistently shown that anywhere from 67-69% of Americans oppose executing minors. When a decision aligns with what 2 out of 3 people agree upon, it can hardly be labeled "progressive."

Finally, I think harping upon the legal reasoning of the case misses the point. Interpreting the Bill of Rights has always been (and will always be) a matter of "5 out of 9 old people agree." Being a legal realist, I think in most "interpretive" cases, judges use legal reasoning to justify the decision to which their moral compass has already led them.

In this instance, the Court's moral compass led them to the majority position. I have to agree with Weisberg to the extent that the Court is likely now finished tinkering with the death penalty. There are no more "exceptional groups" to be litigated, and most Americans support the death penalty, so it is likely safe unless public opinion turns drastically. This is not to say that anti-death penalty advocates will not still use the courts as their preferred route, rather that the Court has finished listening.