Tuesday, March 01, 2005

Roper v. Simmons

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.


jacob said...

Read the dissent in Atkins (It is one of Scalia's finest) before you read this decision. I assume you oppose of the death penalty otherwise why would you thank god this was struck down. As for me, I dont think a child is capable of the crimes some of these "juveniles" commit. The heinousness of the crim eitself is evidence of "adulthood." Besides, we dont need more per se rules. A case by case determination by the jury is not that bad.

Will said...

Read also O'Connor's dissent in this case-- it provides a very good argument for why this should not have followed from Atkins.

Will said...

I reply.

Miss M said...

[Disclaimer: I don't know anything about law.]

>As for me, I dont think a child is capable of the crimes some of these "juveniles" commit. The heinousness of the crim eitself is evidence of "adulthood."

I'm trying to decide whether it's fair to play the "but you don't _know_ about these types of kids the way I do" card, and I guess I just did, but really, the argument can be unemotional too, and I think Zev made it fine. Children are children, in that they are just not fully emotionally developed. this ( i think) has physiological evidence re: brain development behind it, but should also be intuitive to anyone who remembers being 14.
I'm not sure what you think the criteria of "childhood" are. violent criminals who are also children clearly don't have the "childish" innocence some people like to idealize, but they still have the fundamental incompetence (or incomplete competence, to be less extreme) to fully-flesh out thoughts and decisions.
and, for the record, once i'm here, if one supports the death penalty, if one thinks it is sometimes imorally applied, can't one thank God when those applications are discontinued?

that's all i have to say about that.

I know I'm not supposed to point out your spelling errors, but "achieve moral parody with the EU" was too good to pass up. I think you meant parity, but even I tend to think that "justice in the EU is a prody of a lot of things...

jacob said...

Before i reply to Miss M, i would like to point out that I think I posted my reply to a short post and not the long "analysis" that is on the blog now.

Miss M: It is fair to use the "you dont know..." card. It provides a context for your argument. Unfortunately, it is just not true. i dont want to sound like Lao Tzu (if you can pick up this reference I am impressed) but how do you know I dont know?
Your entire argument is correct but it leads to my conclusion: we need a case by case determination of culpability and maturity. Using your logic, what is fundamentally different about an 18 year old and a 17 year old about to celegrate his birthday? Nothing. I dont want to execute every 17 year old. But if you are going to have the death penalty for 18 year olds you should allow the jury the opportunity to decide whether the 17 year old should be treated like and adult. I would also say that the jury should decide wheterh the 18 year old should be spared the death penalty for being more like a juvenile than an adult. Drawing a line in the sand takes away that option and turns out hurting more people if you consider that only 2 juveniles have been executed in the last 20 years. ( i think that is correct)
Besides, "evolving standards of decency" is the test for deciding what is "cruel and unusual" and evolving stadnards of decency is defined as what the people through their legislatures determine is moral and decent. Scalia is correct that the court has disregarded America's standards of decency and substituted their own.
I think you would have to be naive to not see what this case is really about - namely, an attack on the death penalty and the weakening of our criminal justice system to the point where nothing but a "slap on the wrist" will consistent with the fundamental human rights of the criminal (who of course is really the victim of circumstance, right?) Lest you think this slippery slope argument is theoretical, consider that many "civilised" countires have banned Life without parole. Mexico is refusing to extradite a criminal to the US because he faces life without parole (The us and mexico have a treaty allowing each one to deny extradition to criminals facing the death penalty) arguing that it is just as cruel as death in that it completely robs the criminal of his fundamental right to freedom, etc. I dont want to go on a rant here but the "Supreme Court" of Mexico has even said that Life WITH parole is just as illegal as Life Without parole.
I will stop here after I note that "Supreme Court" is in quotes because I refuse to grant any legitimacy to any official in the Mexican criminal jsutice system.

Zev said...

Sasson, Will pointed out to me last year, the second order punishment in this country for any crime is rape (i.e. what happens when you get to jail- or at least the threat). I do not envy any man in the federal prision system (for this and many other reasons), and although I would love if it were a "slap on the wrist" (re: humane punishment), it most certainly is not. Chistopher Simmons will not be enjoying his time in jail.
Your point about "case by case" is a good one (Shmuli raised it last night after shiur). My defence, at this point, is that individuals need to be informed of their legal "change of status". It does not seem fair to me to try a 16 year old as an adult, as prior to the crime we have given him (or her- but unlikely) no notification that he has attained the status of adulthood (save abortion stuff, which I believe is silly for the same reasons). Adolecence is the period where we coax kids into becoming responcible, and it is unfair to foist that on them overnight. We put a large value on "knowing your rights" and there is no way to inform kids in situ of this change. That being said, I have not carefully considered what we should to with 17 yo murders- and no, releasing them on their 18th birthday is not a good idea.

Zev said...

Oh, and +2 for your reference to Toaist munks.

Anonymous said...

Why the fetish with age consistency across different areas of public policy? Doesn't it seem probable that the different purposes and goals of different areas of public policy should translate into different age standards as well. After all mentally retarded and other incompetents may not sign valid contracts but do have the right to vote. I do not recall, but I would be shocked if the standard for finding one "Not Guilty by Reason of Insanity" is the same as declaring one incompetent to sign a contract.
If what bothers you is the "unfairness" of a lesser package of benefits but an equal package of penalties, I think that is misguided. First of all because the unfairness to the innocent victim (whose death may have been deterred had we not generally treated juvenile crime differently) surely trumps the unfairness of juvenile murderer's unequal package. Secondly, we limit contracting for the benefit of minors (and the retarded or otherwise incompetent) so their package cannot be considered inferior on those grounds. Criminal law, however, has the general purpose of deterring crime for the benefit of society as a whole (there are, of course, other aspects to criminal law, but I believe this serves to illustrate my point). This societal need is given priority over the benefit of the criminal. The societal need is the same regardless of the age of the criminal.
One might argue that voting rights for incompetents involves a more equal battle between societal needs and the incompetents' benefit. Society arguably is worse off if incompetents participate in decisionmaking but they may lose out if their interest is not represented. Since it is more likely a society will harm its adult incompetents than its children it is more important that incompetents get a vote than children. I actually believe otherwise and advocate minors voting as soon as they are minimally competent to do so, but then I don't believe it will harm society if children vote (unless they vote Democrat).


Miss M said...

ok, i want to revisit what i thought i said b/c i see i didn't communicate what i thought i did. i;m not concerned with your (jacob's) "conclusion" but with a particualr (tangential?)claim you made, which i quoted before, regarding the "heinousness" of a crime being "evidence of adulthood."

i don't have a cohesive opinion about this case, and i don't think i took a position. all i meant to do was question your logic of "if you do certain things you are definitionally 'adult' in some way." i'm still not at all sure what you meant, or what your definition of "adult" or "not a child" is in that context. that's all.

ie: if you think jury's should determine when someone is culpable as an adult b/c specific details are more important than age, sounds ok to me, liche'ora. however, in the quote i cited b/f, you seemed to imply that anyone who does something above a certain level of horrible is definitionally "adult," since a "child" is incapable of those actions, and that's where i disagree. actually, before disagreeing, i'm just confused as to exactly what you meant. (ie, as i said, how are you defining "adult" and "child" here?)

ps: sorry for making any uncalled for assumptions.

the end.

jacob said...
This comment has been removed by a blog administrator.
Anonymous said...

Jacob- First of all, my last statement was that children voting Democrat would harm society. Do you actually doubt that? Second, as a former participant in classroom mock elections, I can tell you that children will vote overwhelmingly as their parents do (I voted for Mondale in 1984). These votes will not harm society any more than the parents' votes. I might feel differently if I believed that most children would vote for the teenage mutant ninja turtles against parental advice. Lest you think that parental influence delegitimates these votes be aware that the single best predictor of adult voters' partisan alliegance is their parents' partisan alliegance.

I actually feel that parents should have extra votes for any children they have that are unable to vote, under the theory that these interests deserve to be represented and the parents are a better proxy than the nation as a whole (a view held independently by Judge Posner). Of course, since Rachel and I have three small children this plan would leave poor lonely Jacob with only one measely vote against Rachel's robust five. Further, I think you must agree that if children were able to vote, the Springfield pro-family forces would not have had to resort to dirty tricks to defeat the ant-family initiative.


P.S. One advantage in not even attempting multi-finger typing is fewer typos.

Yehuda said...


It's great to hear from you on the site, but I'm sorry you are so down on the Democrats these days. After all, leftists may not have everything wrong. Check out this article from Pravda:

jacob said...

I went back and read the longer post and I dont understand how you would be happier looking at WRT to point 2., I dont understand how you would be more comfotable looking at the rest of the world for standards of decency in interpreting our constitution than a national concensus. Scalia does not argue that a majority of states determine a standards. It is the lack of concensus that renders juvenile death constitutional. Why is a foreign concensus better than our own concensus? also, there is no foreign concensus. I would submit that ours is the only country that actaully has government by the people (at least until now.) It is very telling that support for the death penalty in europe is over 50% yet not only is it illegal in every european country, but banning the death penalty entirely is a pre-requisite for admittance to the EU. How can this be in democracies? Well, Europe is governed by elites not by theri own citizens. so, when the case against the death penalty comes to the supreme court in a few years dont be surprised when Kennedy writes the decision banning the death penalyt altogether. all he has to do is delete the word "juvenile", play with some of the numbers, and tweak this decision and...voila he can basically submit the same opinion. consider that "enlightened" countries ban the death penalty. the trend in thsi country is away from the death penalty, etc.
Id hate to bring this up but, the entire world regularly condemns Israel. shoudl that be a consideration in terrorism cases being brought in US District Court?

jacob said...

I am reposting and edited version of my last post which manage to commit the very wrongs i asked others to avoid.

Zev - you make two points. with respect to the punishment in prison, i would first point out that noone gets raped in federal prison. (there is a reason it is called club fed) murder is a state crime and christopher simmons is not in a federal facility. anyway, the sad state of our prsion system is irrelevant.
with regards to your second point, i dont see why we need notice of adulthood. the laws are all the notice you need. the existence of death penalty for juveniles is notice enough.

great to hear form you. i cant imagine how long it took you to type this. ill assume someone else typed it.
anyway, i dont think your last point about minors is true. first, you assume minors know and are capable of determining their interests. how you can say that as a father is hard for me to understand. second, even if they can determine their inerests, they cannot determine their long term intersts. im not a neurscinece expert but maybe someone can describe to the group the processes of myelination and dentrite pruning. the way i understand it, (you a have to read amicus briefs form ama, etc) the part of the brain that allows people to make cost benefit analysis is the last to develop. (actaully, it doenst fully develop until early 20s for boys, earleir for girls)
besides, voting is not jsut about your own interests but those of others as well.
class is over, so i will respond ot Miss M. at a later time.