03 March 2005

More legislation without representation

Speaking of legislation without representation: here go the Prophets again. Now the death penalty for juviniles is unconstitutional because it violates the Eight Amendment to the Constitution (which is applicable to the States by virtue of the 14th Amend., you will recall). Here are a few gems from the prophecy in Roper v. Simmons (i.e., Justice Kennedy, for the majority):

"...30 States prohibit the juvenile death penalty, comprising 12 that have rejected the death penalty altogether and 18 that maintain it but, by express provision or judicial interpretation, exclude juveniles from its reach."

So the state tally, is 30 states opposed to the juvinile death penalty, 20 states in favor. Wow. Interesting statistic, if true (Scalia answers this in his dissent). This is irrelevant. Constitutionality ought not be decided by the laws of the states, especially when you consider that those very laws can be struck down by the Prophets, at their whim.

"A majority of States have rejected the imposition of the death penalty on juvenile offenders under 18"

Irrelevant. The touchstone of constutionality is the constitution, at least according to Justice Frankfurter--once upon a time. If the touchstone of constitutionality is the laws of a majority of the states, then why does the court now assert that a future change in this consensus is unconstitutional? For that is what the court does: Even if we stipulate that the court is correct, that a consensus does exist, the court now says that it would be unconstitutional for these same states to change their minds, to change this putative consensus. So they were free to form this putative consensus; but now they must pass a constitutional amendment in order to change their minds. Clearly, the Prophets think we're stupid. (Besides, are we to believe that if a majority of the states provided for juvinile death penalty that the Prophets would be upholding the constitutionality of such laws? If so, then what of the constitution? If a majority of the states decided, figuratively speaking, to jump off a cliff, would the rest be constitutionally required to follow suit? Apparently so!!!)

"Three general differences between juveniles under 18 and adults demonstrate that juvenile offenders cannot with reliability be classified among the worst offenders. First, as any parent knows and as the scientific and sociological studies respondent and his amici cite tend to confirm, "[a] lack of maturity and an underdeveloped sense of responsibility are found in youth more often than in adults and are more understandable among the young. These qualities often result in impetuous and ill-considered actions and decisions".... The second area of difference is that juveniles are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure.... The third broad difference is that the character of a juvenile is not as well formed as that of an adult. The personality traits of juveniles are more transitory, less fixed. These differences render suspect any conclusion that a juvenile falls among the worst offenders. The susceptibility of juveniles to immature and irresponsible behavior means "their irresponsible conduct is not as morally reprehensible as that of an adult."

Here, according to the court itself, is the behavior that that these immature, underdeveloped, vulnerable, and not completely well formed teenagers did: "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."

"The reality that juveniles still struggle to define their identity means it is less supportable to conclude that even a heinous crime committed by a juvenile is evidence of irretrievably depraved character"

No one is punished for having "irretrievably depraved character". One is punished for committing a crime.

"Our determination that the death penalty is disproportionate punishment for offenders under 18 finds confirmation in the stark reality that the United States is the only country in the world that continues to give official sanction to the juvenile death penalty."

Here we go again: If the rest of the world decided to jump off a cliff, must the United States follow along? If the actions of other nations are instructive for us, then whose actions were instructive for all those other nations whose actions are instructive for us?

"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. Brief for Respondent 49-50. In sum, it is fair to say that the United States now stands alone in a world that has turned its face against the juvenile death penalty."

Forget the cliff. If the United States were alone as the only country in the world that fails to convert to Islam, would the United States be obligated to consider the rest of the world's embrace of Islam as somehow "instructive"? I haven't gone to law school, so of course I am an idiot, but when I took Logic in college this sort of reasoning, called ad populem was logically fallacious. That the rest of the world is foolish ought not to be our problem!

Justices Stevens and Ginsburg, concurring
"If the meaning of [the 8th Amendment] had been frozen when it was originally drafted, it would impose no impediment to the execution of 7-year-old children today."

Even so, setting the age is a matter for state legislatures to decide. Also: we are not talking here of 7-year-old; we are talking about a 17-year-old.

Justice O'Connor, dissenting:

"[B]ecause '[t]he basic concept underlying the Eighth Amendment is nothing less than the dignity of man,' the Amendment 'must draw its meaning from the evolving standards of decency that mark the progress of a maturing society'" (quoting from Trop v. Dulles, 356 U. S. 86, 100-101 [1958] [plurality opinion]).

First it is not quite philosophically sound to talk about "the basic concept" being "the dignity of man." There are different conceptions of the dignity of man. It is not very clear which one of them is basic to the Eighth Amendment. This is the problem when lawyers try to do philosophy from the bench. My own conception of the so-called dignity of man would not exclude the execution of a seventeen year old; in fact, my conception would require it, in the name of the dignity of the victim. Second, "the evolving standards of decency" are best reflected in legislative acts, not judicial decisions. If the role of judges is to apply the law, or to say what the law is--and if the laws we live under are to be enacted by the people through their legislatures, or Congress--then these "evolving standards of decency" are best reflected in the laws passed by those legislatures, or Congress, and not the courts.

"Granting the premise 'that adolescents are generally less blameworthy than adults who commit similar crimes...it does not necessarily follow that all 15-year-olds are incapable of the moral culpability that would justify the imposition of capital punishment'"

All right, she's quoting her own (concurring) opinion in Thompson v. Oklahoma, 487 U. S. 815 (1988), but she makes a good, philosophically sound point, I think.

"[T]he Court adduces no evidence whatsoever in support of its sweeping conclusion...that it is only in "rare" cases, if ever, that 17-year-old murderers are sufficiently mature and act with sufficient depravity to warrant the death penalty. The fact that juveniles are generally less culpable for their misconduct than adults does not necessarily mean that a 17-year-old murderer cannot be sufficiently culpable to merit the death penalty. At most, the Court's argument suggests that the average 17-year-old murderer is not as culpable as the average adult murderer. But an especially depraved juvenile offender may nevertheless be just as culpable as many adult offenders considered bad enough to deserve the death penalty."

Good point! But this sort of logic is probably lost on the liberals on the court.

"[A] legislature may reasonably conclude that at least some 17-year-olds can act with sufficient moral culpability, and can be sufficiently deterred by the threat of execution, that capital punishment may be warranted in an appropriate case."

Could Christopher Simmons have acted with "sufficient moral culpability"? Here, you be the judge (so to speak):

"Christopher Simmons' murder of Shirley Crook was premeditated, wanton, and cruel in the extreme. Well before he committed this crime, Simmons declared that he wanted to kill someone. On several occasions, he discussed with two friends (ages 15 and 16) his plan to burglarize a house and to murder the victim by tying the victim up and pushing him from a bridge. Simmons said they could 'get away with it' because they were minors. In accord with this plan, Simmons and his 15-year-old accomplice broke into Mrs. Crook's home in the middle of the night, forced her from her bed, bound her, and drove her to a state park. There, they walked her to a railroad trestle spanning a river, 'hog-tied' her with electrical cable, bound her face completely with duct tape, and pushed her, still alive, from the trestle. She drowned in the water below. One can scarcely imagine the terror that this woman must have suffered throughout the ordeal leading to her death. Whatever can be said about the comparative moral culpability of 17-year-olds as a general matter, Simmons' actions unquestionably reflect 'a consciousness materially more "depraved" than that of' ... the average murderer' [quoting Godfrey v. Georgia, 446 U. S. 420, 433 (1980)]. And Simmons' prediction that he could murder with impunity because he had not yet turned 18--though inaccurate--suggests that he did take into account the perceived risk of punishment in deciding whether to commit the crime. Based on this evidence, the sentencing jury certainly had reasonable grounds for concluding that, despite Simmons' youth, he 'ha[d] sufficient psychological maturity' when he committed this horrific murder, and 'at the same time demonstrate[d] sufficient depravity, to merit a sentence of death'" (emphases mine).

"Chronological age is not an unfailing measure of psychological development, and common experience suggests that many 17-year-olds are more mature than the average young 'adult.' In short, the class of offenders exempted from capital punishment by today's decision is too broad and too diverse to warrant a categorical prohibition. 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."

Good point, philosophically speaking. The court here assumes that the members of one class (i.e., those who are younger than 18 years) are also members of another class (i.e., those who are not able to act with "sufficient moral culpability"). The court does not explain how membership in the first class is automatic membership in the second. All we need, to serve as a counter-example, is one person, under the age of 17, to demonstrate moral maturity. O'Connor is right to point out the fallacious logic which the majority embraces.

"I disagree with Justice Scalia's contention...that foreign and international law have no place in our Eighth Amendment jurisprudence. Over the course of nearly half a century, the Court has consistently referred to foreign and international law as relevant to its assessment of evolving standards of decency."

It hardly stands to reason, even if true, that the fact that one has always, or even only frequently, done something means that one is required, or even justified in continuing the practice. This may especially be so, if there is argument being made that the practice is improper. O'Connor's silly position is: We've been doing this for t amount of time, therefore we should continue doing this. This is why I rarely appreciate her logic: it is much like the sun on a partly cloudy day, visible only for the briefest of moments.

It would be nice to post some gems in the Scalia dissent(joined by The Chief Justice and Justice Thomas). But the whole thing, including many of the footnotes, is a gem.


As the Supreme Council of Prophets hears oral argument on the Ten Commandments, one has to wonder how many nations either establish or "endorse" a religion. If a majority of nations do so, I bet we can expect the Prophets to ignore this. Oh, yes: this establishment, or "endorsement" of religion by other nations is one of the issues which Scalia points out in his Roper dissent.


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James Frank Solís
Former soldier (USA). Graduate-level educated. Married 26 years. Texas ex-patriate. Ruling elder in the Presbyterian Church in America.
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