Thank God the court finally struck this down (although 5-4 is far closer than I would have liked). I don't see how this was not obvious, esp. in light of
Daryl Renard Atkins v. Virginia. I want to read
the decision and post more later.
A little while later:
Intuitively Justice Kennedy's argument just makes sense to me.
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. (p. 20)
And really all of (b)(2) on p. 1-2 of the synopsis.
I realize that while I feel very passionately about the matter, I am not a jurist and trained mainly in philosophy, theology and ethics. Thus most of the arguments that I can bring are not from the realm of the legal (re: relevant) but the philosophical/political. Oh well. For now best-of clips:
It has been noted that “adolescents are overrepresented statistically in virtually every category of reckless behavior.” Arnett, Reckless Behavior in Adolescence: A Developmental Perspective, 12 Developmental Review 339 (1992). In recognition of the comparative immaturity and irresponsibility of juveniles, almost every State prohibits those under 18 years of age from voting, serving on juries, or marrying without parental consent. (p. 15)
As for retribution, we remarked in Atkins that “[i]f the culpability of the average murderer is insufficient to justify the most extreme sanction available to the State, the lesser culpability of the mentally retarded offender surely does not merit that form of retribution.” 536 U. S., at 319. The same conclusions follow from the lesser culpability of the juvenile offender. (p.17)
Respondent and his amici have submitted, and petitioner does not contest, that only seven countries other than the United States have executed juvenile offenders since 1990: Iran, Pakistan, Saudi Arabia, Yemen, Nigeria,the Democratic Republic of Congo, and China. Since then each of these countries has either abolished capital punishment for juveniles or made public disavowal of the practice. (p.23)
JUSTICE O’CONNOR, dissenting: The Court’s decision today establishes a categorical rule forbidding the execution of any offender for any crime committed before his 18th birthday, no matter how deliberate, wanton, or cruel the offense. (p.1)
Indeed, the age-based line drawn by the Court is indefensibly arbitrary—it quite likely will protect a number of offenders who are mature enough to deserve the death penalty and may well leave vulnerable many who are not. (p.16)
Accordingly, for purposes of our decision in Atkins, the mentally retarded are not merely less blameworthy for their misconduct or less likely to be deterred by the death penalty than others. Rather, a mentally retarded offender is one whose demonstrated impairments make it so highly unlikely that he is culpable enough to deserve the death penalty or that he could have been deterred by the threat of death, that execution is not a defensible punishment. There is no such inherent or accurate fit between an offender’s chronological age and the personal limitations which the Court believes make capital punishment excessive for 17-year-old murderers. (p.16)
Justice Scalia dissenting: What a mockery today’s opinion makes of Hamilton’s expectation, announcing the Court’s conclusion that the meaning of our Constitution has changed over the past 15 years—not, mind you, that this Court’s decision 15 years ago was wrong, but that the Constitution has changed. The Court reaches this implausible result by purporting to advert, not to the original meaning of the Eighth Amendment, but to “the evolving standards of decency,” ante, at 6 (internal quotation marks omitted), of our national society. (p.1)
Even laterer:
1. Upon rethinking I realize that Atkins is not
a fortiori to Roper, but yes, I am against the death penalty. Hobbes defines cruelty in De Cive as that which looks back and not forward. It seems to me that the death penalty punishes the criminal based on the heinousness of their action and not to protect society from that person, or allow the criminal to reform. That being said, my opinion is irrelevant because our Supreme Court does not believe the death penalty to be either cruel or unusual.
2. Listening to Jacob's good advice I read Scalia's dissent of Atkins v. Virginia. Scalia, per usual, shows why he is brilliant and explains that and "evolving standard of decency" is not the best of arguments to make. He then examines the objective evidence for the evolving standards, which are tenuous. To that end I agree with
Mr. Thunder that looking for national consensus is not the best idea. That is to say looking at the various states of the Union and how they legislate does not strike me as the best way of determining standards, the purpose of having states rights is not to enforce uniformity. Just because 26 states do not have the death penalty does not mean that we ought to coerce the remaining 24. To that end I am more comfortable with looking at the rest of the world for these standards of decency. As a matter of policy I do not think it wise to attempt to achieve moral parity with the EU, but the fact that the only countries to have executed minors since 1990 were Iran, Pakistan, Saudi Arabia, Yemen, Nigeria,the Democratic Republic of Congo, and China does make it seem a little laughable that we would attempt to do so.
3. Trying minors as adults has always baffled me. How can you call an apple a pear, when it is in fact a pear? Assuming that minors are held to a lighter standard of the law, the harshest punishments should be reserved for only those who possess full status under the law. Echoing Justice Kennedy, minors do not have the right (re: competence) to sign contracts or vote. This is a categorical (arbitrary) rule whereby one who is born one day earlier may vote, while another, born later, may not. Once we hold that minors lack this competence, they should lack it in all domains of the law.
It fundamentally bothers me that some reason that if a child commits a calculated crime, it must mean that he has a calculating sense of moral reasoning. Computers can calculate, but they cannot be tried for murder. Children can be very smart, but not wise; wisdom can only come with age. It is the wisdom that allows us to understand the consequences of our actions. While 18 does seem arbitrary, we assign arbitrary standards all the time to proclaim when and where responsibilities fall. It is impossible to believe that kids (yes 17 years olds are still kids- have you seen the prospies?) can understand the full moral implication of their actions. Like the story of Cain and Abel, Cain understood what killing was, but he did not yet understand murder.
I apologize to all the legal feet I have just trampled on.
