The Supreme Court and the Death Penalty

I've had a week to fume about the Supreme Court's opinion in Roper v. Simmons, where the high court decreed that executing teenagers was unconsitutional. What's really amazing is that I'm anti-death penalty, but I find the Court's logic ridiculous.

Let's start with a quick outline of what the defendant did, as noted in Justice Kennedy's majority opinion...

At the age of 17, when he was still a junior in high school, Christopher Simmons, the respondent here, committed murder. About nine months later, after he had turned 18, he was tried and sentenced to death. 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, discussing it for the most part with two friends, Charles Benjamin and John Tessmer, then aged 15 and 16 respectively. 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 “get away with it” because they were minors.

The three met at about 2 a.m. on the night of the murder, but Tessmer left before the other two set out. (The State later charged Tessmer with conspiracy, but dropped the charge in exchange for his testimony against Simmons.) Simmons and Benjamin entered the home of the victim, Shirley Crook, after reaching through an open window and unlocking the back door. Simmons turned on a hallway light. Awakened, Mrs. Crook called out, “Who’s there?” In response Simmons entered Mrs. Crook’s bedroom, where he recognized her from a previous car accident involving them both. Simmons later admitted this confirmed his resolve to murder her.

Using duct tape to cover her eyes and mouth and bind her hands, the two perpetrators put Mrs. Crook in her minivan and drove to a state park. They reinforced the bindings, covered her head with a towel, and walked her to a railroad trestle spanning the Meramec River. There they tied her hands and feet together with electrical wire, wrapped her whole face in duct tape and threw her from the bridge, drowning her in the waters below.

By the afternoon of September 9, Steven Crook had returned home from an overnight trip, found his bedroom in disarray, and reported his wife missing. On the same afternoon fishermen recovered the victim’s body from the river. Simmons, meanwhile, was bragging about the killing, telling friends he had killed a woman “because the bitch seen my face.”

This is one reason, by the way, that the courage of my convictions escapes me when I argue the death penalty issue with people. I'm against it for moral reasons, yet arguing against its application to a person like Christopher Simmons makes me want to throw up. But I admire those who have the courage to argue against it. Call me a wimp on the issue.

But here's the thing -- I don't believe the death penalty is unconstitutional. And, for now, neither does the Supreme Court.

But apparently, it's unconstitutional for minors. Somehow, the fact that Simmons was 270 days or so short of the age of 18 makes him categorically safe from a death penalty sentance. The logic for the decision seems to rest on the following rounds:

1. A majority of states no longer allow the execution of juveniles.

2. People under 18 can't be held fully culpable for their actions, and therefore should not be subject to the worst penalty applicable for said actions.

3. The case for retribution or deterrance, which are the driving forces behind the death penalty, do not exist when it comes to juveniles.

4. Most of the rest of the world doesn't allow the state execution of juveniles, as per the United Nations Convention on the Rights of the Child.

I'm a lawyer. And I look at those four reasons above and have one question. How do any of these factors contribute to a Constitutional violation?

The rationales offered above are policy choices that should be made by state legislatures, or the people of the state deciding that the state constitution should be amended to end juvenile executions. For example, my home state, Virginia, permits the imposition of the death penalty to minors. If we like, we should pass a law barring this practice. But the court's logic basically holds that because more states go the other way, our laws are invalid. Apparently, such a consensus is enough to merit a decision that our "evolving" constitutional principles no longer allow the execution of people under 18.

And don't get me started on the court's absolutely asinine decision to quote from the U.N. Convention on the Rights of the Child. This is a convention that we haven't ratified as a nation, yet the court cites it as authority. Next, why doesn't Kennedy cite to the protocols of the Federation of Planets?

As Justice Scalia points out in a typically marvelous dissent, the Court has found a consensus by picking the 18 states (out of 38) which permit the death penalty, but won't permit its application to minors. What a consensus. But Scalia is even more incisive with this analysis...

If the Eighth Amendment set forth an ordinary rule of law, it would indeed be the role of this Court to say what the law is. But the Court having pronounced that the Eighth Amendment is an ever-changing reflection of “the evolving standards of decency” of our society, it makes no sense for the Justices then to prescribe those standards rather than discern them from the practices of our people. On the evolving-standards hypothesis, the only legitimate function of this Court is to identify a moral consensus of the American people. By what conceivable warrant can nine lawyers presume to be the authoritative conscience of the Nation?

The reason for insistence on legislative primacy is obvious and fundamental: “ ‘[I]n a democratic society legislatures, not courts, are constituted to respond to the will and consequently the moral values of the people.’ ” Gregg v. Georgia, 428 U.S. 153, 175—176 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.) (quoting Furman v. Georgia, 408 U.S. 238, 383 (1972) (Burger, C. J., dissenting)). For a similar reason we have, in our determination of society’s moral standards, consulted the practices of sentencing juries: Juries “ ‘maintain a link between contemporary community values and the penal system’ ” that this Court cannot claim for itself. Gregg, supra, at 181 (quoting Witherspoon v. Illinois, 391 U.S. 510, 519, n. 15 (1968)).

Today’s opinion provides a perfect example of why judges are ill equipped to make the type of legislative judgments the Court insists on making here. To support its opinion that States should be prohibited from imposing the death penalty on anyone who committed murder before age 18, the Court looks to scientific and sociological studies, picking and choosing those that support its position. It never explains why those particular studies are methodologically sound; none was ever entered into evidence or tested in an adversarial proceeding.

There's a reason why Scalia kicks ass. His opinions always follow the same set of principles and actually make sense, as opposed to those we see from almost every other justice from time to time (or more often than that, when we're discussing Stevens). There's some other great lines in this dissent that should leave people wondering whether Kennedy feels like he got slapped...

In other contexts where individualized consideration is provided, we have recognized that at least some minors will be mature enough to make difficult decisions that involve moral considerations. For instance, we have struck down abortion statutes that do not allow minors deemed mature by courts to bypass parental notification provisions. See, e.g., Bellotti v. Baird, 443 U.S. 622, 643—644 (1979) (opinion of Powell, J.); Planned Parenthood of Central Mo. v. Danforth, 428 U.S. 52, 74—75 (1976). It is hard to see why this context should be any different. Whether to obtain an abortion is surely a much more complex decision for a young person than whether to kill an innocent person in cold blood.

...It is interesting that whereas the Court is not content to accept what the States of our Federal Union say, but insists on inquiring into what they do (specifically, whether they in fact apply the juvenile death penalty that their laws allow), the Court is quite willing to believe that every foreign nation–of whatever tyrannical political makeup and with however subservient or incompetent a court system–in fact adheres to a rule of no death penalty for offenders under 18. Nor does the Court inquire into how many of the countries that have the death penalty, but have forsworn (on paper at least) imposing that penalty on offenders under 18, have what no State of this country can constitutionally have: a mandatory death penalty for certain crimes, with no possibility of mitigation by the sentencing authority, for youth or any other reason.

...The Court has been oblivious to the views of other countries when deciding how to interpret our Constitution’s requirement that “Congress shall make no law respecting an establishment of religion… .” Amdt. 1. Most other countries–including those committed to religious neutrality–do not insist on the degree of separation between church and state that this Court requires.

...And let us not forget the Court’s abortion jurisprudence, which makes us one of only six countries that allow abortion on demand until the point of viability.

I've seen plenty of anti-death penalty advocates expressing satisfaction with the decision.

Not me. This may be the right result, but the ends don't justify the means. We're a democratic republic. When the people of the nation, or of its individual states, decide that the death penalty is bad policy, it should be abolished. Until then, nine men in robes shouldn't suddenly decide that a practice that has been part of our system of justice since the founding of the republic is unconstitutional.