T Nation

Death Penalty and USSC Activism

This ought to be interesting, given the vehemence with which most people hold opinions on the death penalty.

Did anyone else see the recent (last few days) U.S. Supreme Court opinion that, on a 5-4 vote, banned states from imposing the death penalty on any crime committed prior to the age of majority (i.e. 18)?

To me, this case is one of the worst examples of judicial activism, and it comes in the area in which judicial activism often comes, a “social” or “moral” issue – in other words, the precise type of issue that should be left to elected governments.

The main rationale, which is a common one in 8th Amendment “cruel and unusual punishment” cases, is that “changing standards of decency” have happened that have made the practice in question, which used to be OK, now not OK. I understand the standard, and even if I don’t agree with it all the way, I can see the reasoning, and I’m not really sure I want the original understanding of precisely what was “cruel and unusual” in 1789 enshrined (though that only happens because earlier the USSC willfully misconstrued the “cruel and unusual” clause, which was intended to act as a limit on judges from enacting penalties harsher than those enshrined by legislatures). Even given that though, generally the reasoning in this case was poor (see below).

To top it off, Justice Kennedy, in the majority opinion, referenced “international laws” and morals as authority – which might be all well and good in a case of first impression or something, but given this was a case on the 8th Amendment of the U.S. Constitution on which there was direct U.S. Supreme Court precedent from 1989. A more poorly written and justified opinion would be difficult to imagine.

George Mason Law Professor Orin Kerr does a more thorough analysis of the opinion here:

http://volokh.com/posts/chain_1109726269.shtml

[Orin Kerr, March 1, 2005 at 8:17pm] 16 Trackbacks / Possibly More Trackbacks
Roper v. Simmons and Capital Litigation:

I have just finished working my way through the opinions in Roper v. Simmons ( http://scotus.ap.org/scotus/03-633p.zo.pdf ). As someone who greatly values stare decisis, I was disappointed by Justice Kennedy’s majority opinion. There just isn’t much there to justify overruling a 16-year-old precedent and striking down 18 state laws. I’m not sure about the juvenile death penalty as a matter of policy, but I found Justice Scalia’s powerful dissent pretty tough to refute as a matter of constitutional law.

One interesting part of Roper is the incentives it creates (together with Atkins v. Virginia ( http://supct.law.cornell.edu/supct/html/00-8452.ZS.html )) for those seeking judicial abolition of the death penalty. Roper and Atkins tell capital defense litigators to delay their cases for as many years as possible. Drag out the appeals for a long, long time. During that period, have activists try to encourage legislators in a few select states to enact new legislative restrictions on the death penalty. It doesn’t matter if those restrictions have any actual effect on how cases are charged; bans in states that do not actually bring any death penalty cases are fine, as the real audience is the Supreme Court. Years down the road, you can then use the new legislative restrictions in a few states as “objective indicia of consensus” that the practice of using the death penalty in such cases is impermissible. In effect, the changing practice in a handful of states can be bootstrapped by the courts into a constitutional ban that applies to all states.

Notably, the bootstrapping can be prospective: evidence of changing attitudes in years following the crime and conviction can be used to trump then-governing law. This seems to be what happened in Roper. In 1989, the Court held that it was permissible to execute persons for murders committed at the age of 16 and 17. In 1993, Christopher Simmons committeed his heinous murder, and in 1994, Simmons was convicted and sentenced to death. Then, in the 11 years after Simmons was convicted and before the Supreme Court decided its case, 4 states decided end potential juvenile capital liability. [At least I think the states acted after 1994; to be honest, it’s hard to tell from the Streib chart that the Court relies on ( http://www.law.onu.edu/faculty/streib/documents/JuvDeathDec2004.pdf ). If anyone knows the exact dates, please e-mail me.] The action of the 4 states then became the basis for an alleged “consensus” in the direction of ending the juvenile death penalty. Had Roper been scheduled for execution soon after his conviction, executing him presumably would have been constitutional. Executing him apparently became unconstitutional only years later, after Atkins loosened up the Eighth Amendment a bit and a few states had banned the juvenile death penalty.

UPDATE: Reader Jack Sullivan points out: “It seems pretty obvious that the defense lawyers already have plenty of incentive for delay. Delay keeps their clients alive.” Indeed! The novel part here isn’t the incentive for delay but the incentive for pushing legislative reforms during that delay.

[Orin Kerr, March 2, 2005 at 9:53am] 7 Trackbacks / Possibly More Trackbacks
Roper v. Simmons and Evolving Standards of Decency:

In Roper v. Simmons ( http://scotus.ap.org/scotus/03-633p.zo.pdf ), yesterday’s decision declaring the juvenile death penalty unconstitutional, the Supreme Court relied heavily on the fact that five states have gone from allowing the juvenile death penalty to banning it since the Court’s 1989 decision in Stanford v. Kentucky ( http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=492&invol=361 ):

 [i] Five States that allowed the juvenile death penalty at the time of Stanford have abandoned it in the intervening 15 years ? ?four through legislative enactments and one through judicial decision. Streib, supra, at 5, 7; State v. Furman, 122 Wash. 2d 400, 858 P. 2d 1092 (1993) (en banc).
  Though less dramatic than the change from Penry to Atkins (?telling,? to borrow the word Atkins used to describe this difference, 536 U. S., at 315, n. 18), we still consider the change from Stanford to this case to be significant.[/i]

As Xrlq points out ( http://xrlq.com/2005/03/01/2187/supremes-to-juvenile-thugs-dont-pay-no-mind-if-youre-under-18-you-wont-be-doin-any-time/ ), however, something important is missing from this analysis: a sense of whether the five states that changed their policy are states in which capital litigation is active or basically dormant. If the goal is to look for “evolving standards of decency” and find an “emerging national consensus,” it is one thing to say that practices changed in five states; it is another to say that actual practices stayed the same, but that the law on the books in a few states changed. The difference matters because while most states allow capital punishment in theory, the actual practice of bringing capital cases and carrying out the sentences is heavily weighted in favor of a small number of states.

I took a look at some statistics, and the stats seem to confirm my suspicion: the five states that moved to ban capital punishment for juveniles are states that have capital punishment on the books but rarely use those laws. While five states changed their laws on the books since 1989, it seems that actual practices since 1989 remained the same.

Here are the stats I found. The juvenile death penalty has always been very rare in the United States; since the beginning of the republic, it has occurred on average about once a year. That rate has remained constant (at least in absolute terms) in the last twenty years: 22 juveniles have been executed in the last 20 years. Texas is responsible for 13 of those cases; Virginia for 3; Oklahoma 2; Georgia, South Carolina, Louisiana, Missouri each for 1. (stats on page 4 of the Streib report ( http://www.law.onu.edu/faculty/streib/documents/JuvDeathDec2004.pdf ) cited in the Roper opinion)

The states that banned the juvenile death penalty since Stanford v. Kentucky are Washington (by the courts), and (I think, from page 7 of the Streib report). Kansas, New York, Montana, and Indiana. But Washington, Kansas, New York, Montana, and Indiana aren’t states that have executed anyone for a juvenile crime at least in the last three decades ? and indeed, I’m having trouble finding evidence that any of these states ever actually did so.

More broadly, these five states are not active death penalty states even for adult crimes. Since the death penalty was reinstated in 1976, these five states have been responsible for 17 out of the 1,000 or so executions that have occurred ? only about 2% of the total. 11 of the 17 executions were in just one state, Indiana. (The numbers, available here ( http://www.clarkprosecutor.org/html/death/dpusa.htm ), are Washington - 4, Kansas - 0, New York - 0, Montana - 2, and Indiana - 11.) Notably, of the 4 states that abolished the juvenile death penalty by legislative decision, 2 of those don’t actually have a functional death penalty for any defendant.

If I understand the statistics correctly, the move to abolish the juvenile death penalty in five states since 1989 is essentially symbolic: none of those states have executed a juvenile in many decades, if ever, and the five states are mostly states that have capital punishment in theory but not in practice. If the “evolving standards of decency” inquiry of the Eighth Amendment focuses on actual practices, then there seems to be virtually no evidence of a changed standard since 1989.


The Wall Street Journal also opined against USSC court activism generally and Roper specifically here:

The Blue State Court
March 2, 2005; Page A16

Supreme Court Justice Anthony Kennedy has many attributes, but judicial modesty isn’t one of them. His latest legislative diktat in the guise of a legal decision – issued yesterday in Roper v. Simmons – overturns 19 state laws on behalf of a “national consensus” that he alone seems to have defined.

Yesterday’s ruling concerned a death penalty case, which isn’t something we usually write about. But what makes Roper notable, and worthy of wider debate, is the way it symbolizes the current Supreme Court’s burst of liberal social activism. From gay rights to racial preferences and now to the death penalty, a narrow majority of Justices has been imposing its own blue state cultural mores on the rest of the country. We suspect it is also inviting a political backlash.

No doubt most Americans will concede that the death penalty for 16- and 17-year-olds is a difficult moral question. That is why different U.S. states have different laws on the matter, and we’d probably oppose such executions if we sat in a legislature. But rather than defer to the will of voters as expressed through state legislatures and at least two ballot initiatives (in Arizona and Florida), Roper imposes the view of five justices that the execution of 16- and 17-year-olds is both wrong and unconstitutional. As Justice Antonin Scalia writes in a dissent that is even more pungent than his usual offerings, “The court thus proclaims itself sole arbiter of our nation’s moral standards.”

Mr. Kennedy rests his decision on his assertion that American society has reached a “national consensus” against capital punishment for juveniles, and that laws allowing it contravene modern “standards of decency.” His evidence for this “consensus” is that of the 38 states that permit capital punishment, 18 have laws prohibiting the execution of murderers under the age of 18. As we do the math, that’s a minority of 47% of those states. The dozen states that have no death penalty offer no views about special immunity for juveniles – and all 12 permit 16- and 17-year-olds to be treated as adults when charged with non-capital offenses.

This idea of invoking state laws to define a “consensus” also runs up against any number of notable Supreme Court precedents, including Roe v. Wade. When Roe was decided in 1973, all 50 states had some prohibition against abortion on the books. But never mind.

Even weaker is the Roper majority’s selective reliance on scientific and sociological “evidence” – the kind that legislatures (and juries) are used to weighing. The American Psychological Association claims in this case that killers under the age of 18 are incapable of making appropriate moral judgments. But this is the same organization that has told the Court in the past that teen-age girls are mature enough to decide whether to have an abortion without parental input. Which is it?

Perhaps the most troubling feature of Roper is that it extends the High Court’s recent habit of invoking foreign opinion in order to overrule American laws. “It is proper that we acknowledge the overwhelming weight of international opinion against the juvenile death penalty,” Justice Kennedy writes. We thought the Constitution was the final arbiter of U.S. law, but apparently that’s passe.

In invoking international “opinion,” however, the majority also seems rather selective. Justice Kennedy cites the United Nations Convention on the Rights of the Child, which outlaws the juvenile death penalty. But that Convention also prohibits imprisonment without parole for juvenile offenders – a penalty favored by some, if not all, 50 states. Is the Court ready to sign on to that international standard too?

Such inconsistency suggests that the real reason this Court has taken to invoking “international opinion” is because it is one more convenient rationale that the Justices can use to make their own moral values the law of the land. And it is no surprise that Mr. Kennedy’s majority opinion is joined by the four liberal Justices who have long been on record as opposing the juvenile death penalty – Ruth Bader Ginsburg, Stephen Breyer, David Souter and John Paul Stevens. In Roper they finally found a case, and an inventive legal hook, on which they could lure Justice Kennedy.

If there is a silver lining to this case, it is that it probably disqualifies Justice Kennedy from any consideration to be promoted to Chief Justice when William Rehnquist resigns. Some in Washington, and even some in the Bush Administration, have floated this possibility as a way to ensure an easy Senate confirmation. But we doubt that the red state voters who re-elected President Bush, and gave Republicans a larger majority in the Senate, did so to promote a Justice who thinks their values are an affront to “standards of decency.”

I really don’t see how this is activism at all.

Of course I am against the death penalty, and I do think death is a cruel punishment for anybody, but certainly it is cruel for children.

And I would think red-state voters would be totally against this, in keeping with their christian values, you have to be against the death penalty, and no question you’d be against the death penalty for children.

Although I’ll admit Kennedy needn’t bother with the stats in his report…stick to the constitution.

[quote]100meters wrote:
I really don’t see how this is activism at all.

Of course I am against the death penalty, and I do think death is a cruel punishment for anybody, but certainly it is cruel for children.

And I would think red-state voters would be totally against this, in keeping with their christian values, you have to be against the death penalty, and no question you’d be against the death penalty for children.

Although I’ll admit Kennedy needn’t bother with the stats in his report…stick to the constitution.[/quote]

In the bible, it says if a man kills, he should also be killed.

Childhood ends at about 13. From then on you should be eligible for the needle.

I’d say 16 is the cut off age. I’ve done some stuff around that age that I would NEVER do now (I’m 22 now). Hell, the brain doesn’t totally develop until the age of 25 (or so studies say).

[quote]HouseOfAtlas wrote:

In the bible, it says if a man kills, he should also be killed. [/quote]

Yeah, it also says, “thou shalt not judge”. Funny what you pick and choose.

[quote]Professor X wrote:
HouseOfAtlas wrote:

In the bible, it says if a man kills, he should also be killed.

Yeah, it also says, “thou shalt not judge”. Funny what you pick and choose.[/quote]

It also says “Do not covent your neighbor’s wife”. I messed that one up a LONG time ago :slight_smile:

I don’t think this is a federal issue. I don’t think the Supreme Court had the right to hear this case, much less legislate from the bench.

It’s an easy out for politicians. Now they don’t have to make a hard decision because the courts have done it for them.

We need term limits for judicial appointments.

[quote]rainjack wrote:

It’s an easy out for politicians. Now they don’t have to make a hard decision because the courts have done it for them.
[/quote]

You know in Texas killing a kid who has killed kids is not a tough decision for a politician. It’s just good old common sense.

[quote]
We need term limits for judicial appointments. [/quote]

How many people in America do you think are qualified to sit on the Supreme Court? How long would you set their term? I think we would have run out of qualified candidates around 1890 or so.

I saw this issue on the front page of the Tallahassee Democrat (our birdcage liner around here) the other day, and literally said “oh shit.”

There is a little part of the punishment process called “deterrence” which has now been somewhat eliminated for minors. Is this not in some small way like a license for our youth who are already perhaps not the wisest of us to even further justify their own stupidity by saying to themselves “oh well, it’s not like I’ll get the death penalty…”

[quote]doogie wrote:
How many people in America do you think are qualified to sit on the Supreme Court? How long would you set their term? I think we would have run out of qualified candidates around 1890 or so.[/quote]

Look at the decisions that the court has handed down recently. The argument can be made that we’ve already run out of qualified candidates.

I like what Mark Levin says in his book. 12 year terms for all federal appointments and then get your fat-ass off the bench.

[quote]lothario1132 wrote:
I saw this issue on the front page of the Tallahassee Democrat (our birdcage liner around here) the other day, and literally said “oh shit.”

There is a little part of the punishment process called “deterrence” which has now been somewhat eliminated for minors. Is this not in some small way like a license for our youth who are already perhaps not the wisest of us to even further justify their own stupidity by saying to themselves “oh well, it’s not like I’ll get the death penalty…”[/quote]

Well “deterrence” is a moot point since the death penalty in no way deters crime.

States with no death penalty have a lower rate of murder than states with the death penaltly.

80 percent of executions happened in the southern states, those states have murder rates higher than the national average

The northeast had the fewest executions and the lowest murder rate.

Plus murder is a crime of passion in most cases, people aren’t thinking about the death penalty or life in prison when they kill somebody…

And although Jews believe in the death penalty, christians being honest with themselves should not. I only see evidence of Jesus being anti-death penalty, not pro-death penalty.

he said turn the other cheek

lots of talk of forgiveness

oh and saving the adultress from recieving the death penalty (stoning) and sending her on her way.

On the other hand Jesus did say to follow the law, so did Paul, and Jesus never said anything about his crossmates, so it seems he was content with the law of the land, but his actions and teachings can only be read as anti-death penalty.

Oh and not to mention if your going to use the old testament…thou shall not kill.

[quote]100meters wrote:
Well “deterrence” is a moot point since the death penalty in no way deters crime.[/quote]
What planet are you from? OF COURSE it deters crime. Any time some crook avoids doing something bad because he’s afraid to get the friggin’ chair it deters him. Any time we give some asshole the gas chamber instead of turning him out on the street to commit more crimes we are deterring future crime.

[quote]States with no death penalty have a lower rate of murder than states with the death penaltly.

80 percent of executions happened in the southern states, those states have murder rates higher than the national average

The northeast had the fewest executions and the lowest murder rate.

Plus murder is a crime of passion in most cases, people aren’t thinking about the death penalty or life in prison when they kill somebody…[/quote]
According to the statements above, all that you’ve proven is that we in the south are more passionate than y’all yankees. Next thing you know, you’re going to pull out some argument for taking away our bulldogs, too.

I’d like to take this opportunity to take your logic a step further:

A lot of crimes of passion are committed by jealous husbands, therefore, we should outlaw marriage.

Problem solved.

Do you see what I’m getting at? There is a lot more going on here than some punishment guidelines. You can’t just make murder go away by taking away the death penalty.

[quote]And although Jews believe in the death penalty, christians being honest with themselves should not. I only see evidence of Jesus being anti-death penalty, not pro-death penalty.

he said turn the other cheek

lots of talk of forgiveness

oh and saving the adultress from recieving the death penalty (stoning) and sending her on her way.

On the other hand Jesus did say to follow the law, so did Paul, and Jesus never said anything about his crossmates, so it seems he was content with the law of the land, but his actions and teachings can only be read as anti-death penalty.

Oh and not to mention if your going to use the old testament…thou shall not kill.

[/quote]
Uhhh… how did the bible come into this? I use the bible to prop up the leg of one of our tables back at the house. It works great… I love the bible.

What does this have to do with the Ten Commandments?

I dislike this decision on a number of levels, not the least of which was Kennedy’s desire to invoke ‘international opinion’ in a decision that has nothing to do with what anyone outside the US thinks. The issue should be measured against constitutional langauge and history, not whether a few European countries think the juvenile death penalty isn’t progressive.

After all, in mentioning ‘international opinion’, is the court considering the vast populations of China, the various little African nations, and the Arab countries, as well as EU nations? I doubt this ‘enlightened’ opinion was quite as broad as the international consensus the court would have us believe.

Not that it matters, as stated previously - I only care if the American Constitution via the 8th Amendment prohibits the juvenile death penalty. I personally don’t think it’s a great idea, if I were on a legislature, I’d vote against it, but to say it’s unconstitutional? Naked inventive activism.

One more case of a court deciding on bases other than constitutional language (the text) or the overwhelming popular attitude. Seems like the court is making it as it goes along.

The death penalty seems to be taking a beating lately. Some weeks ago the USSC ruled it is unlawful to execute the retarded; although they dodged the tough question and left it up to the states to decide exactly who is “too retarded”. This is blatant activism and to my mind the inital steps towards abolishment. This is the same tact taken by gun control advocates; take small steps that are slightly limiting just to get the public used to the curtailment, then eventually we are executing no one and we are gunless.

Full disclosure: I am pro death penalty. Sorry to sound Dickensian but I am in favor of anything that decreases the surplus population.

[quote]barbos01 wrote:
Full disclosure: I am pro death penalty. Sorry to sound Dickensian but I am in favor of anything that decreases the surplus population. [/quote]
Don’t be sorry, man. Totally agree with you about this and gun control, btw.

“Guns don’t kill people. Husbands who come home early from work kill people. Blaming a death on a gun is like me blaming my misspelled words on my pencil.”
-Larry the Cable Guy

On what thunderbolt23 wrote:

I totally agree that kennedy’s statement is so stupid, you don’t make (judicial) decisions based on consensus!

But I don’t understand how in modern society, killing a child can’t be considered a cruel punishment. Death is a mighty cruel punishment no matter how much it may be deserved.

[quote]100meters wrote:
But I don’t understand how in modern society, killing a child can’t be considered a cruel punishment. Death is a mighty cruel punishment no matter how much it may be deserved.[/quote]

Why don’t you ask that question to your pro-abortion pals.

[quote]rainjack wrote:
100meters wrote:
But I don’t understand how in modern society, killing a child can’t be considered a cruel punishment. Death is a mighty cruel punishment no matter how much it may be deserved.

Why don’t you ask that question to your pro-abortion pals.[/quote]

Relation?

[quote]doogie wrote:
Childhood ends at about 13. From then on you should be eligible for the needle. [/quote]

So…you can’t screw 'em, but you can kill 'em?

Also, following a line of reasoning that posits 13 as an adult age then I imagine you’d be supporting the immediate lowering of the drinking, voting and voluntary enlistment ages?