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| Death Penalty for Minors |
ETWolverine |
03/01/05 |
The US Supreme Court just came down with a decision in Roper v. Simmons, in which they have decided that it is illegal to apply the death penalty to those under the age of 18 at the time their crimes were committed.
Kennedy wrote the Court's opinion, with Stevens, Souter, Ginsberg, and Breyer concuring. O'Connor wrote a lone dissenting opinion, and Scalia wrote a separate dissenting opinion to which Rehnquist and Thomas joined.
The basis of the Court's decision was twofold: 1) there is a consensus in the USA that the death penalty for minors is wrong in all cases, and 2) there is an international consensus that the death penalty is wrong for minors. The Court applied these consesnsi to the 8th Amendment against Cruel and Unusual Punishment. They said that the definition of Cruel and Unusual Punishment is subject to change as the consensus of opinion regarding appropriate behavior changes. Since, the Court claimed, there was a national and international consensus against death penalty for minors, they ruled against such a death penalty for minors. The Court further cited several studies that said that minors as a general rule are too immature to be deterred by a death penalty or to understand the consequences of their actions as support for their decision.
O'Connor dissented. She argued that there is no clear consensus, and therefore there is no way to determine that the definition of Cruel and Unusual Punishment has changed to include a death penalty for minors. She further claims that while it is true that many teens are too immature to be deterred by a death penalty or understand the consequences of their actions, there are those minors who ARE sufficiently mature, and judgements should be made on a case-by-case basis.
Scalia, Thomas and Rehnquist also dissented, with Scalia writting. Instead of summarizing Scalia, I want to cite his opinion. I think it gives the flavor of his words much better than I ever could. (I have eliminated the citations within his opinion to shorten this post.)
Hang on to your hats folks. This is going to be a long one...
JUSTICE SCALIA,with whom THE CHIEF JUSTICE and
JUSTICE THOMAS join,dissenting.
In urging approval of a constitution that gave life-
tenured judges the power to nullify laws enacted by the people’s representatives,Alexander Hamilton assured the citizens of New York that there was little risk in this, since “[t ]he judiciary ...ha [s ] neither FORCE nor WILL but merely judgment.” But Hamilton had in mind a traditional judiciary,“bound down by strict rules and precedents which serve to define and point out their duty in every particular case that comes before them.” Bound down, indeed. 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,”(internal quotation marks omitted),of our national society.It then finds,on the flimsiest of grounds, that a national consensus which could not be perceived in our people ’s laws barely 15 years ago now solidly exists.Worse still,the Court says in so many words that what our people ’s laws say about the issue does not,in the last analysis,matter:“[I ]n the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment.” (internal quotation marks omitted). The Court thus proclaims itself sole arbiter of our Nation ’s moral standards —and in the course of discharging that awesome responsibility purports to take guidance from the views of foreign courts and legislatures. Because I do not believe that the meaning of our Eighth Amendment, any more than the meaning of other provisions of our Constitution, should be determined by the subjective views of five Members of this Court and like-minded foreigners, I dissent.
I
In determining that capital punishment of offenders
who committed murder before age 18 is “cruel and un-
usual ” under the Eighth Amendment,,the Court first
considers,in accordance with our modern (though in my
view mistaken)jurisprudence,whether there is a “na-
tional consensus,”ibid.(internal quotation marks omit-
ted),that laws allowing such executions contravene our
modern “standards of decency,”1. We have held that this determination should be based on “objective indicia that reflect the public attitude toward a given sanction ”—namely,“statutes passed by society ’s elected representatives.” (internal quotation marks omitted). As in Atkins v.Virginia, the Court dutifully recites this test and claims halfheartedly that a national consensus has emerged since our decision in Stanford ,because 18 States —or 47% of States that permit capital punishment —now have legislation prohibiting the execution of offenders under 18,and because all of four States have adopted such legislation since Stanford. Words have no meaning if the views of less than 50% of death penalty States can constitute a national consensus.
Our previous cases have required overwhelming opposi-
tion to a challenged practice,generally over a long period of time.In Coker v.Georgia, a plurality concluded the Eighth Amendment prohibited capital punishment for rape of an adult woman where only one jurisdiction authorized such punishment.The plurality also observed that “[a]t no time in the last 50 years ha[d] a majority of States authorized death as a punishment for rape.” In Ford v.Wainwright, we held execution of the insane unconstitutional, tracing the roots of this prohibition to the common law and noting that “no State in the union permits the execution of the insane.” In Enmund v.Florida, we invalidated capital punishment imposed for participation in a robbery in which an accomplice committed murder, because 78% of all death penalty States prohibited this punishment.Even there we expressed some hesitation,because the legislative judgment was “neither ‘wholly unanimous among state legislatures,’...nor as compelling as the legislative judgments considered in Coker .” By contrast,agreement among 42% of death penalty States in Stanford ,which the Court appears to believe was correctly decided at the time, was insufficient to show a national consensus.
In an attempt to keep afloat its implausible assertion of national consensus,the Court throws overboard a proposition well established in our Eighth Amendment jurisprudence.“It should be observed,” the Court says,,“that the Stanford Court should have considered those States that had abandoned the death penalty altogether as part of the consensus against the juvenile death penalty ...;a State ’s decision to bar the death penalty altogether of necessity demonstrates a judgment that the death penalty is inappropriate for all offenders,including juveniles.” The insinuation that the Court ’s new method of counting contradicts only “the Stanford Court ” is misleading. None of our cases dealing with an alleged constitutional limitation upon the death penalty has counted,as States supporting a consensus in favor of that limitation,States that have eliminated the death penalty entirely. And with good reason. Consulting States that bar the death penalty concerning the necessity of making an exception to the penalty for offenders under 18 is rather like including old-order Amishmen in a consumer-preference poll on the electric car.Of course they don ’t like it,but that sheds no light whatever on the point at issue. That 12 States favor no executions says something about consensus against the death penalty, but nothing —absolutely nothing —about consensus that offenders under 18 deserve special immunity from such a penalty.In repealing the death penalty,those 12 States considered none of the factors that the Court puts forth as determinative of the issue before us today —lower culpability of the young, inherent recklessness, lack of capacity for considered judgment, etc. What might be relevant,perhaps,is how many of those States permit 16-and 17-year-old offenders to be treated as adults with respect to non-capital offenses.(They all do;2 indeed, some even require that juveniles as young as 14 be tried as adults if they are charged with murder.3 ) The attempt by the Court to turn its remarkable minority consensus into a faux majority by
counting Amishmen is an act of nomological desperation.
Recognizing that its national-consensus argument was
weak compared with our earlier cases,the Atkins Court
found additional support in the fact that 16 States had
prohibited execution of mentally retarded individuals
since Penry v.Lynaugh. Indeed,the Atkins Court distinguished Stanford on that very ground,explaining that “[a]lthough we decided Stanford on the same day as Penry ,apparently only two state legislatures have raised the threshold age for imposition of the death penalty.” (emphasis added). Now, the Court says a legislative change in four States is “significant” enough to trigger a constitutional prohibition.4 It is amazing to think that this subtle shift in numbers can take the issue entirely off the table for legislative debate.
I also doubt whether many of the legislators who voted
to change the laws in those four States would have done so if they had known their decision would (by the pronouncement of this Court) be rendered irreversible. After all,legislative support for capital punishment, in any form,has surged and ebbed throughout our Nation’s history.
***Snip***
II
Of course,the real force driving today ’s decision is not the actions of four state legislatures,but the Court’s “‘“own judgment ”’”that murderers younger than 18 can never be as morally culpable as older counterparts. The Court claims that this usurpation of the role of moral arbiter is simply a “retur [n ] to the rul [e ]established in decisions predating Stanford,” That supposed rule — which is reflected solely in dicta and never once in a holding that purports to supplant the consensus of the American people with the Justices ’ views 7 —was repudiated in Stanford for the very good reason that it has no foundation in law or logic. If the Eighth Amendment set forth an ordinary rule of law,it would indeed be the role of this Court to say what the law is.But the Court having pronounced that the Eighth Amendment is an ever-changing reflection of “the evolving standards of decency ” of our society, it makes no sense for the Justices then to prescribe those standards rather than discern them from the practices of our people.
On the evolving-standards hypothesis, the only legitimate function of this Court is to identify a
moral consensus of the American people. By what conceivable warrant can nine lawyers presume to be the
authoritative conscience of the Nation?8 The reason for insistence on legislative primacy is obvious and fundamental:“‘[I ]n a democratic society legislatures, not courts,are constituted to respond to the will and
consequently the moral values of the people.’” For a similar reason we have,in our determination of society ’s moral standards,consulted the practices of sentencing juries: Juries “‘maintain a link between contemporary community values and the penal system ’” that this Court cannot claim for itself. Today ’s opinion provides a perfect example of why judges are ill equipped to make the type of legislative judgments the Court insists on making here. To support its opinion that States should be prohibited from imposing
the death penalty on anyone who committed murder before age 18,the Court looks to scientific and sociological studies,picking and choosing those that support its position. It never explains why those particular studies are methodologically sound;none was ever entered into evidence or tested in an adversarial proceeding. As THE CHIEF JUSTICE has explained:
“[M ]ethodological and other errors can affect the reli
ability and validity of estimates about the opinions
and attitudes of a population derived from various
sampling techniques.Everything from variations in the survey methodology,such as the choice of the target population, the sampling design used,the questions asked, and the statistical analyses used to interpret the data can skew the results.”
In other words,all the Court has done today,to borrow
from another context,is to look over the heads of the
crowd and pick out its friends.
We need not look far to find studies contradicting the
Court ’s conclusions.
***Snip***
Given the nuances of scientific methodology and conflicting views,courts —which can only consider the
limited evidence on the record before them —are ill
equipped to determine which view of science is the right one. Legislatures “are better qualified to weigh and ‘evaluate the results of statistical studies in terms of their own local conditions and with a flexibility of approach that is not available to the courts.’” Even putting aside questions of methodology,the studies cited by the Court offer scant support for a categorical prohibition of the death penalty for murderers under 18.
At most,these studies conclude that,on average ,or in
most cases, persons under 18 are unable to take moralresponsibility for their actions. Not one of the cited studies opines that all individuals under 18 are unable to appreciate the nature of their crimes. Moreover,the cited studies describe only adolescents
who engage in risky or antisocial behavior,as many young people do. Murder,however,is more than just risky or antisocial behavior.It is entirely consistent to believe that young people often act impetuously and lack judgment, but,at the same time,to believe that those who commit premeditated murder are —at least sometimes —just as culpable as adults. Christopher Simmons,who was only seven months shy of his 18th birthday when he murdered Shirley Crook,described to his friends beforehand —“[i ]n chilling,callous terms,” as the Court puts it,,ante ,at 1 — the murder he planned to commit.He then broke into the home of an innocent woman, bound her with duct tape and electrical wire,and threw her off a bridge alive and conscious. In their amici brief,the States of Alabama,Delaware,Oklahoma,Texas,Utah,and Virginia
offer additional examples of murders committed by individuals under 18 that involve truly monstrous acts. In Alabama,two 17-year-olds,one 16-year-old,and one 19-year-old picked up a female hitchhiker,threw bottles at her, and kicked and stomped her for approximately 30 minutes until she died. They then sexually assaulted her lifeless body and, when they were finished,threw her body off a cliff. They later returned to the crime scene to mutilate her corpse. Other examples in the brief are equally shocking. Though these cases are assuredly the exception rather than the rule, the studies the Court cites in no way justify a constitutional imperative that prevents legislatures and juries from treating exceptional cases in an exceptional way —by determining that some murders are not just the acts of happy-go-lucky teenagers,but heinous crimes deserving of death.
***Snip***
The Court concludes,however,ante ,at 18,that juries cannot be trusted with the delicate task of weighing a defendant’s youth along with the other mitigating and
aggravating factors of his crime. This startling conclusion undermines the very foundations of our capital sentencing system,which entrusts juries with “mak [ing ] the difficult and uniquely human judgments that defy codification and that ‘buil[d ] discretion,,equity,and flexibility into a legal system.’” The Court says, that juries will be unable to appreciate the significance of a defendant ’s youth when faced with details of a brutal crime. This assertion is based on no evidence; to the contrary,the Court itself acknowledges that the execution of under-18 offenders is “infrequent ”even in the States “without a formal prohibition on executing juveniles,” suggesting that juries take seriously their responsibility to weigh youth as a mitigating factor.
Nor does the Court suggest a stopping point for its
reasoning. If juries cannot make appropriate determinations in cases involving murderers under 18, in what other kinds of cases will the Court find jurors deficient? We have already held that no jury may consider whether a mentally deficient defendant can receive the death penalty, irrespective of his crime. Why not take other mitigating factors,such as considerations of childhood abuse or poverty, away from juries as well? Surely jurors “overpower[ed ]” by “the brutality or cold-blooded nature ” of a crime could not adequately weigh these mitigating factors either.
The Court ’ s contention that the goals of retribution and deterrence are not served by executing murderers under 18 is also transparently false. The argument that “[r ]etribution is not proportional if the law ’s most severe penalty is imposed on one whose culpability or blameworthiness is diminished,” is simply an extension of the earlier, false generalization that youth always defeats culpability. The Court claims that “juveniles will be less susceptible to deterrence,” because “‘[t ]he likelihood that the teenage offender has made the kind of cost-benefit analysis that attaches any weight to the possibility of execution is so remote as to be virtually nonexistent’”. The Court unsurprisingly finds no support for this astounding proposition, save its own case law. The facts of this very case show the proposition to be false. Before committing the crime, Simmons encouraged his friends to join him byassuring them that they could “get away with it ” because they were minors. This fact may have influenced the jury ’s decision to impose capital punishment despite Simmons ’ age. Because the Court refuses to entertain the possibility that its own unsubstantiated generalization about juveniles could be
wrong,it ignores this evidence entirely.
III
Though the views of our own citizens are essentially irrelevant to the Court ’s decision today,the views of other countries and the so-called international community take center stage.
The Court begins by noting that “Article 37 of the
United Nations Convention on the Rights of the Child, which every country in the world has ratified save for the United States and Somalia, contains an express prohibition on capital punishment for crimes committed by juveniles under 18.” at 22 (emphasis added). The Court also discusses the International Covenant on Civil and Political Rights (ICCPR), December 19,1966 which the Senate ratified only subject to a reservation that reads:
“The United States reserves the right,subject to its
Constitutional restraints,to impose capital punishment on any person (other than a pregnant woman) duly convicted under existing or future laws permitting the imposition of capital punishment, including such punishment for crime committed by persons below eighteen years of age.”
Unless the Court has added to its arsenal the power to join and ratify treaties on behalf of the United States, I cannot see how this evidence favors,rather than refutes,its position. That the Senate and the President —those actors our Constitution empowers to enter into treaties, -have declined to join and ratify treaties prohibiting execution of under-18 offenders can only suggest that our country has either not reached a national consensus on the question, or has reached a consensus contrary to what the Court announces. That the reservation to the ICCPR was made in 1992 does not suggest otherwise, since the reservation still remains in place today. It is also worth noting that,in addition to barring the execution of under-18 offenders,the United Nations Convention on the Rights of the Child prohibits punishing them with life in prison without the possibility of release. If we are truly going to get in line with the international community, then the Court ’s reassurance that the death penalty is really not needed, since “the punishment of life imprisonment without the
possibility of parole is itself a severe sanction gives little comfort.
It is interesting that whereas the Court is not content to accept what the States of our Federal Union say ,but insists on inquiring into what they do (specifically, whether they in fact apply the juvenile death penalty that their laws allow),the Court is quite willing to believe that every foreign nation —of whatever tyrannical political makeup and with however subservient or incompetent a court system —in fact adheres to a rule of no death penalty for offenders under 18. Nor does the Court inquire into how many of the countries that have the death penalty, but have forsworn (on paper at least) imposing that penalty on offenders under 18, have what no State of this country can constitutionally have: a mandatory death penalty for certain crimes, with no possibility of mitigation by the sentencing authority,for youth or any other reason. I suspect it is most of them. To forbid the death penalty for juveniles under such a system may be a good idea, but it says nothing about our system, in which the sentencing authority, typically a jury, always can, and almost always does, withhold the death penalty from an under-18 offender except, after considering all the circumstances, in the rare cases where it is warranted. The foreign authorities, in other words,do not even speak to the issue before us here.
More fundamentally,however,the basic premise of the
Court ’s argument —that American law should conform to
the laws of the rest of the world —ought to be rejected out of hand. In fact the Court itself does not believe it. In many significant respects the laws of most other countries differ from our law —including not only such explicit provisions of our Constitution as the right to jury trial and grand jury indictment, but even many interpretations of the Constitution prescribed by this Court itself. The Court-pronounced exclusionary rule, for example,is distinctively American. When we adopted that rule in Mapp v. Ohio, it was “unique to American Jurisprudence.” Since then a categorical exclusionary rule has been “universally rejected ” by other countries, including those with rules prohibiting illegal searches and police misconduct, despite the fact that none of these countries “appears to have any alternative form of discipline for police that is effective in preventing search violations.” England, for example, rarely excludes evidence found during an illegal search or seizure and has only recently begun excluding evidence from illegally obtained confessions. Canada rarely excludes evidence and will only do so if admission will “bring the administration of justice into disrepute.” The European Court of Human Rights has held that introduction of illegally seized evidence does not violate the “fair trial ” requirement in Article 6,§1,of the European Convention on Human Rights.
The Court has been oblivious to the views of other countries when deciding how to interpret our Constitution ’s requirement that “Congress shall make no law respecting an establishment of religion....” Amdt.1. Most other countries —including those committed to religious neutrality —do not insist on the degree of separation between church and state that this Court requires. For example, whereas “we have recognized special Establishment Clause dangers where the government makes direct money payments to sectarian institutions”, countries such as the Netherlands, Germany,and Australia allow direct government funding of religious schools on the ground that “the state can only be truly neutral between secular and religious perspectives if it does not dominate the provision of so key a service as education,and makes it possible for people to exercise their right of religious expression within the context of public funding.” England permits the teaching of religion in state schools. Even in France,which is considered “America ’s only rival in strictness of church-state separation,” “[t ]he practice of contracting for educational services provided by Catholic schools is very widespread.”
And let us not forget the Court ’s abortion jurisprudence, which makes us one of only six countries that allow abortion on demand until the point of viability. Though the Government and
amici in cases following Roe v.Wade,urged the Court to follow the international community ’s lead,these arguments fell on deaf ears.
The Court ’s special reliance on the laws of the United
Kingdom is perhaps the most indefensible part of its
opinion. It is of course true that we share a common
history with the United Kingdom,and that we often consult English sources when asked to discern the meaning of a constitutional text written against the backdrop of 18th- century English law and legal thought. If we applied that approach today,our task would be an easy one. As we explained in Harmelin v.Michigan, the “Cruell and Unusuall Punishments ” provision of the English Declaration of Rights was originally meant to describe those punishments “‘out of [the Judges ’] Power ’”—that is,those punishments that were not authorized by common law or statute, but that were nonetheless administered by the Crown or the Crown ’s judges. Under that reasoning,the death penalty for under-18 offenders would easily survive this challenge. The Court has,however —I think wrongly —long rejected a purely originalist approach to our Eighth Amendment, and that is certainly not the approach the Court takes today. Instead, the Court undertakes the majestic task of determining (and thereby prescribing) our Nation ’s current standards of decency. It is beyond comprehension why we should look, for that purpose,to a country that has developed,in the centuries since the Revolutionary War —and with increasing speed since the United Kingdom ’s recent submission to the jurisprudence of European courts dominated by continental jurists —a legal, political,and social culture quite different from our own. If we took the Court ’s directive seriously, we would also consider relaxing our double jeopardy prohibition, since the British Law Commission recently published a report that would significantly extend the rights of the prosecution to appeal cases where an acquittal was the result of a judge ’s ruling that was legally incorrect. We would also
curtail our right to jury trial in criminal cases since, despite the jury system ’s deep roots in our shared common law, England now permits all but the most serious offenders to be tried by magistrates without a jury.
The Court should either profess its willingness to reconsider all these matters in light of the views of foreigners, or else it should cease putting forth foreigners’ views as part of the reasoned basis of its decisions. To invoke alien law when it agrees with one ’s own thinking, and ignore it otherwise,is not reasoned decisionmaking, but sophistry.
The Court responds that “[i]t does not lessen our fidelity to the Constitution or our pride in its origins to acknowledge that the express affirmation of certain fundamental rights by other nations and peoples simply underscores the centrality of those same rights within our own heritage of freedom.” To begin with, I do not believe that approval by “other nations and peoples” should buttress our commitment to American principles any more than (what should logically follow) disapproval by “other nations and peoples” should weaken that commitment. More importantly,however,the Court ’s statement flatly misdescribes what is going on here. Foreign sources are cited today,not to underscore our “fidelity ”to the Constitution, our “pride in its origins,” and “our own [American ] heritage..” To the contrary, they are cited to set aside the centuries-old American practice —a practice still engaged in by a large majority of the relevant States —of letting a jury of 12 citizens decide whether,in the particular case, youth should be the basis for withholding the
death penalty. What these foreign sources “affirm,” rather than repudiate, is the Justices ’ own notion of how the world ought to be, and their diktat that it shall be so henceforth in America. The Court ’s parting attempt to downplay the significance of its extensive discussion of foreign law is unconvincing. “Acknowledgment ” of foreign approval has no place in the legal opinion of this Court unless it is part of the basis for the Court ’ s judgment —
which is surely what it parades as today.
IV
To add insult to injury,the Court affirms the Missouri
Supreme Court without even admonishing that court for
its flagrant disregard of our precedent in Stanford. Until today,we have always held that “it is this Court’s prerogative alone to overrule one of its precedents.” That has been true even where “‘changes in judicial doctrine ’ ha[ve ] significantly undermined ” our prior holding, and even where our
prior holding “appears to rest on reasons rejected in some other line of decisions,”. Today, however,the Court silently approves a state-court decision that blatantly rejected controlling precedent.
One must admit that the Missouri Supreme Court ’s
action,and this Court ’s indulgent reaction,are,in a way, understandable. In a system based upon constitutional and statutory text democratically adopted, the concept of “law ” ordinarily signifies that particular words have a fixed meaning.Such law does not change,and this Court ’s pronouncement of it therefore remains authoritative until (confessing our prior error) we overrule. The Court has purported to make of the Eighth Amendment, however, a mirror of the passing and changing sentiment of American society regarding penology. The lower courts can look into
that mirror as well as we can; and what we saw 15 years
ago bears no necessary relationship to what they see
today. Since they are not looking at the same text, but at a different scene, why should our earlier decision control their judgment?
However sound philosophically, this is no way to run a
legal system. We must disregard the new reality that, to the extent our Eighth Amendment decisions constitute
something more than a show of hands on the current Justices’ current personal views about penology, they
purport to be nothing more than a snapshot of American
public opinion at a particular point in time (with the
timeframes now shortened to a mere 15 years). We must
treat these decisions just as though they represented real law,real prescriptions democratically adopted by the American people,as conclusively (rather than equentially) construed by this Court. Allowing lower courts to reinterpret the Eighth Amendment whenever they decide enough time has passed for a new snapshot leaves this Court ’s decisions without any force —especially since the “evolution ” of our Eighth Amendment is no longer determined by objective criteria. To allow lower courts to behave as we do, “updating ” the Eighth Amendment as needed, destroys stability and makes our case law an unreliable basis for the designing of laws by citizens and their representatives,and for action by public officials. The result will be to crown arbitrariness with chaos.
-------------
I just love the snideness of Scalia's comments. It fits my own opinions of the ruling perfectly.
What are your opinions of the ruling and the dissenting opinions? All can be found here:
Roper v. Simmons
Elliot |
Clarification/Follow-up by excon on 03/02/05 8:16 am:
Hello Elliot:
It is the "opinion" of right wing white men that marijuana should be illegal. Then they wrote down some words, called it law, and declared they had "precedent".
But they don't fool me. I can read. I "know" that marijuana use us Constitutionally protected, even if they don't.
Now these same white men (with a token black) have decided (based upon "precedent") that it's ok to kill children.
But they don't fool me. I can read. And, it's just fine with me, that more of these white men (with a token woman), overruled them (based on precedent, or opinion, or other nations laws) that we shouldn't kill children.
I am, indeed, a strict Constitutionalist. I would rather that the arguments be based on the Constitution, but it's the result that matters - not the deliberations. As long as the result is Constitutional, and it is, then I’m happy (relatively).
excon
Clarification/Follow-up by tomder55 on 03/02/05 9:08 am:
I'm not happy at all . Lee Boyd Malvo no longer can face the death penalty for his role in the DC sniper case ;or in the cases of murder he and John Allen Muhammad committed in Alabama and Louisiana. Clarification/Follow-up by ETWolverine on 03/02/05 9:33 am:
Excon,
I doubt that Ruth Bader Ginsberg would appreciate being called a "token" anything.
The fact is that the Constitution is silent on the issue of the death penalty, including its application to minors. The Constitution DOES give the government the right to make laws that it feels are necessary to run the government, and that includes laws against what it deems to be criminal behavior, and the punishment thereof. Ergo, the marajuana ban is COMPLETELY LEGAL. You may disagree with it, but that doesn't change it's Constitutionality. Ditto the death penalty, even for minors... at least right up until yesterday. Now it is Constitutionally illegal, because the SC said so, and they are the interpreters of the Constitution. I don't like it, but it is now the law of the land, until such time as another Supreme Court says otherwise, or a Constitutional Amendment is made.
On the other hand, if you were living in prohibition times, you would probably argue about the fact that prohibition is unconstitutional... even though the ban was done via Constitutional Amendment, and therefore part of the Constitution.
Saying that something is Unconstitutional doesn't make it so.
Elliot Clarification/Follow-up by ETWolverine on 03/02/05 9:37 am:
>>>I'm not happy at all . Lee Boyd Malvo no longer can face the death penalty for his role in the DC sniper case ;or in the cases of murder he and John Allen Muhammad committed in Alabama and Louisiana.<<<
I'm not sure about that. Malvo committed his crimes before the law changed. Just as one cannot be convicted based on an ex post facto law change, I would argue that he cannot necessarily be spared based on an ex post facto change in the law. That's what I would argue as prosecutor. I don't know if there is a precedent for this type of situation or not.
Elliot
Clarification/Follow-up by tomder55 on 03/02/05 9:51 am:
Every juvenile on death row is now spared .
Clarification/Follow-up by tomder55 on 03/02/05 9:56 am:
What is really strange is the idea that new state laws can change the meaning of the Constitution. In this case, the Court has determined that the actions of four state legislatures and one state court have accomplished a change in the meaning of the Eighth Amendment that would otherwise require an amendment to the Constitution. the article 5 of the Constitution makes it very clear that it can be amemded by 2/3 of both Houses of Congress ;or 2/3 of the State Legislatures calling for a convention and any change ratified by 3/4 of the legislatures of the States ;not not 4 or 5 States changing State laws !!! Kennedy 's revisions to the 8th amendment are bogus !!!
Clarification/Follow-up by ETWolverine on 03/02/05 10:25 am:
Tom,
I think it was Prof. Walter Williams of George Mason University who said that the idea of a "living Constitution" where the rules change based on the laws of the state is like playing poker with "living rules".
"Sorry, Royal Flush no longer beats a Pair. These are living rules, and we changed them to suit our needs."
Living Constitution has always meant that there can be amendments through supermajority vote of the legislature and the states. It has never meant that the Constitution can change based on a PERCEIVED (not even actually confirmed) change in the consensus of opinion.
Heck, by the standards of yesterday's decision, excon is probably right... marajuana should now be legal. I would venture to say that most of the country believes that marajuana should be legalized, at least for medical use. By the "consensus" standard used in yesterday's decision, the law should now change.
Elliot
Clarification/Follow-up by tomder55 on 03/02/05 11:47 am:
excon ;agreed . Cold blooded premeditated murder is cold blooded premeditated murder .It should be punished ,regardless of age ,the same way ;by the maximum penalty .
Clarification/Follow-up by excon on 03/03/05 9:43 am:
Ok, Right wing Dudes (you too, Pdub):
You want to make children responsible for their actions? Cool. No problem. But let's be consistent here.
Let's not decide that they're not responsible enough to drive or drink, or quit school, or join the military. If they're responsible, then damnit, they're responsible!
Or, if they’re kids and should be treated as such, then that’s so. Pick one. You can’t have it both ways.
excon
Clarification/Follow-up by ETWolverine on 03/03/05 11:52 am:
>>>Let's not decide that they're not responsible enough to drive or drink, or quit school, or join the military. If they're responsible, then damnit, they're responsible!<<<
I agree.
Personally, I have always had a problem with an 18 year old being old enough to be in the army, but not old enough to drink. I think it's hypocracy to say that someone is old enough to spill blood, but not spill beer. So I would reverse that first.
Second, like in WWII, the Civil War, the Revolutionary War, and pretty much every war in history prior to WWII, I would have no problem if minors wanted to join up and fight for their country. With one proviso... they have to be physically and mentally qualified, just as an adult must be. If they physically can't do the job, they don't get to join up.
Throughout history, kids as young as 10 have fought in major battles. If they were big enough to hold a sword or a pike, they fought. In the USA, kids joined up either as flag-bearers or drummers, or as ammo-carriers in the Revolutionary War and the Civil War, at their own choice. During WWI and WWII, kids as young as 14 lied about their ages to defend their countries. From my point of view, history has proven that kids can carry their own weight in war.
And it goes without saying that is he's old enough to fight, he's old enough to drink, in my book.
As for school, where did we ever get the idea that every kid has to be forced to go to school? I believe that the government has a requirement to provide schooling TO THOSE THAT WANT IT. Those that don't are on their own. That was the way it was prior to the 20th century. The advantage of that situation was that the ones that wanted to be in school got an education, and weren't distracted by the kids who didn't really want to be there. And those that didn't want to be there didn't make trouble for those that did. It allowed teachers to place their efforts and resources where they were most appreciated. Kids got better educations because they WANTED to be educated. And those that didn't had to fend for themselves. Their choice, their problem. I have absolutely no problem with the idea that if kids want to quit school, go right ahead... it leaves more for the kids who DO want to learn.
So, I agree with you.
Now what?
Elliot
Clarification/Follow-up by excon on 03/03/05 12:11 pm:
What now? We plotz.
excon
Clarification/Follow-up by Itsdb on 03/03/05 2:19 pm:
Elliot,
The article I read this morning that reminded me of Pinkerton was this local op-ed piece.
You can find more detail here.
Clarification/Follow-up by ETWolverine on 03/03/05 2:40 pm:
Steve
Thanks for the links. I appreciate it.
Elliot
Clarification/Follow-up by Itsdb on 03/03/05 3:12 pm:
You are welcome. I did a little more digging and did find the rest of the series if you're interested, part 1, part 2, part 3, part 4. Clarification/Follow-up by ETWolverine on 03/03/05 3:18 pm:
Thanks again.
Elliot
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