• Death penalty: Evolving decency Death penalty: Evolving decency By St. Louis Post-Dispatch March 2, 2005 The United States has joined the rest of the world in deciding that it is barbaric to execute people who were 16 and 17
• Death penalty: Evolving decency
Death penalty: Evolving decency
By St. Louis Post-Dispatch March 2, 2005
The United States has joined the rest of the world in deciding that it is barbaric to execute people who were 16 and 17 years old when they committed murders. In a 5-4 ruling in a case from Fenton, the U.S. Supreme Court decided that the execution of juveniles is cruel and unusual punishment in violation of the 8th Amendment.
Since 1990, only eight countries have executed juveniles: Iran, Pakistan, Saudi Arabia, Yemen, Nigeria, Congo, China and the United States. Not exactly the company we like to keep on human rights. What’s more, the other seven had renounced juvenile executions by the time the U.S. Supreme Court acted.
Justice Anthony M. Kennedy, who wrote the court’s opinion, said the international consensus lent support to the court’s own conclusion that a national consensus against the punishment had developed in the United States. Irascible Justice Antonin Scalia shot back that the “subjective views of five members of this court and like-minded foreigners” shouldn’t matter.
In 1993 Christopher Simmons, then 17, and a 15-year-old accomplice broke into Shirley Crook’s home, bound her with duct tape and threw her into the Meramec River, where she drowned. Simmons was sentenced to death for the horrifying murder.
In 2003 the Missouri Supreme Court took the unusual and risky step of getting out ahead of the U.S. Supreme Court, ruling 4-3 that a national consensus had emerged against executing 16- and 17-year-old murderers.
The Missouri court was criticized for not following precedent, and the four federal dissenters strongly agreed with that criticism. But the majority cited the Missouri Supreme Court’s opinion with approval.
The 8th Amendment’s ban on “cruel and unusual” punishment is different from other parts of the Constitution. The court decided half a century ago that the meaning would change with society’s evolving standards of decency.
Justice Scalia, whose constitutional vision is firmly rooted in the Gilded Age, ridiculed this evolutionary approach as nothing more than “a show of hands on the current justices’ current personal view about penology.”
But there is a good reason not to lock the meaning of the 8th Amendment into 1791, when the amendment was adopted. Back then it was thought perfectly civilized to execute 7-year-olds.
The court concluded that the national consensus against executing 16- and 17-year-olds that had developed over the past decade was similar to the one that developed against executing the mentally retarded, a practice the court threw out three years ago.
In the late 1980s, the Supreme Court concluded that there was no national consensus against either practice. By the time the court took up the issue of executing the mentally retarded in 2002, 30 states had barred their execution – the same number that now bar the execution of juveniles. Similarly, only five states had executed mentally retarded murderers after 1989; only six states had executed juveniles murderers since then.
The court also concluded that juveniles who commit murders are less culpable than adult murderers because they are more impetuous, more susceptible to peer pressure and because their character is less well-formed. The decision removes the death sentence from about 70 juveniles on death row and means that Lee Boyd Malvo, one of the Washington, D.C., snipers, will not face execution.
As interesting as the debate about the juvenile death penalty was the give-and-take over the evolving meaning of the Constitution and the relevance of international norms. Six of the nine justices – dissenting Justice Sandra Day O’Connor joined the majority here – thought the court should pay attention to international views. Six of the nine, again including Justice O’Connor, also stressed that the meaning of the 8th Amendment evolves with time. Justices John Paul Stevens and Ruth Bader Ginsburg went a step further to say that it had long been understood that “our understanding of the Constitution does change from time to time.”
Whether Justice Scalia likes it or not, the views of five justices and like-minded foreigners do matter when it comes to civilized values.
