Instead of making everyone guess, I will just come out and say I am disappointed that the Supreme Court struck down the death penalty for youth. I must also state that I oppose the death penalty on principle for all people. How can I reconcile these two? On youth rights grounds, purely. Not that I believe youth have a right to be executed, but this decision provides more precedent in the argument against the capacity and intelligence of young people. The court’s opinion is based in large part on this assumption. As a practical consideration too, this case hurts. It is good that the court recognized the hypocrisy of sentencing youth to death when they cannot vote, get married, or enjoy other adult rights, however they resolved that hypocrisy in the wrong direction. This results in making 18 a more monolithic age barrier, and takes out of our tool chest the glaring injustice of executing minors who can’t vote. That all being said, I am glad that youth will no longer be executed. It is clearly unjust to impose such a severe adult responsibility on individuals without the adult rights that should accompany it. If only this case didn’t make attaining those adult rights more difficult, I would be more chipper about it all.

I just read through the majority opinion in Roper v. Simmons, and I’ll give you a play by play of my responses to Justice Kennedy’s arguments.

The first point made in the opinion is that popular opinion is moving toward opposition to the juvenile death penalty, and that is grounds to strike it down. In my opinion, popular opinion finds outlet in the legislative branch; the judicial branch should be dealing with absolutes of justice and the Constitution. Popular opinion shouldn’t weigh upon court decisions.

Furthermore, in the decision, Justice Kennedy notes they are borrowing the same standard of looking to action by the states to determine public opinion that they used in the mentally ill death penalty case 3 years ago. He then goes on to concede that the changes in public opinion in both cases were very different. In the last 15 years, 16 states choose to abandon capitol punishment for the mentally retarded, but only 5 choose to abandon it for juveniles. Despite only being a change of 5 states, the court argues that as no state has chosen to reinstate the death penalty for minors, that the switch of these 5 states constitutes a “consistency of direction” in national attitudes toward the juvenile death penalty. Kennedy also sites the decreased utilization of the juvenile death penalty in states that allow it, and ending the use of the juvenile death penalty in the federal system in 1994.

Kennedy is right of course on the “consistency of direction” regarding minor death penalty attitudes, however I don’t think it is a particularly strong case or especially relevant to deciding issues at the US Supreme Court. However it does set a promising precedent for abolishing the death penalty altogether, as many states have chosen to place moritoriums on the death penalty, and one could say that there is a “consistency of direction” away from the death penalty for adults as well.

Of course none of this is really the meat of my objection. To tell the truth I am glad that youth aren’t being executed. I’d be quite happy if no one was executed. However the negative consequences of this case involve the argument that youth are mentally deficient and cannot be compared to adults.

“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.’”

Just the kind of language I am afraid of. This argument enshrined in a SCOTUS decision is a dangerous foe of any possible judicial progress for youth rights. I dispute the validity of the scientific evidence cited, and am bothered by the casual “as any parent knows” language. No doubt Justice Kennedy draws upon the long standing precidents of “as every husband knows” and “as every white person knows” to build this particular case against youth.

His second point is that “juveniles are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure.” This is a disagreeable assertion, but there is a spark of hope when Kennedy mentions this is explained in part “by the prevailing circumstance that juveniles have less control, or less experience with control, over their own environment.” Perhaps leaving open the argument that giving youth more control would eliminate this second point from any bearing on the capabilities of youth.

Thirdly he states the character of a juvenile is not as well formed as an adult, their personality traits are more transitory. This point I can’t really argue with. So generally it is the first point I have the biggest issue with. The second can be addressed and the third is mostly a given.

With the diminished culpability established by the court, Kennedy then questions whether the death penalty has much of a deterrent effect on young offenders. He finds no evidence that it does. I wonder of course whether there is much evidence the death penalty is a deterrent for adult offenders. To make his case, Kennedy quotes the decision in Thompson, “[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.” This is so blatantly false and exaggerated a statement, I am amazed it was quoted. Furthermore it is amazing it was quoted in light of the details of this case in particular, in which the defendant, 17 year old Christopher Simmons, discussed the crime with his friends before it was committed and assured his friends they could “get away with it” because they were minors. Not only does this show a very clear cost-benefit analysis, but it shows that his callous plans were vindicated by the Court.

The Opinion had an interesting, and perhaps overlooked point about the death penalty in general next. Writing that Stanford v. Kentucky (1989) (the last time the Court looked at the juvenile death penalty) is no longer a relevant case, Kennedy notes that in looking for “objective indicia of consensus” regarding the use of the juvenile death penalty, the court should have considered the 12 states that reject the death penalty altogether. Last time, those states weren’t considered as a factor, and this time they are apparently. It is possible this provides a precedent for considering laws against executing juveniles and the mentally retarded in challenges to the death penalty altogether.

Finally, Kennedy discusses international opinion of the juvenile death penalty. He notes that international laws are not a controlling factor in American cases, yet spends three pages discussing them. I agree they should have little bearing on the American judicial system, but this line of reasoning does pose interesting possibilities for the youth rights movement. Considering only four nations in the world have a drinking age of 21, the United States stands against a more unanimous world opinion with the drinking age than it does with a juvenile death penalty. Were someone to bring a case against the drinking age, I think we could use this line of reasoning to our advantage.

Despite being overall bad for future work advocating for youth rights, this case wasn’t as bad as I expected. The decision was short, only 25 pages, and didn’t go into much detail about how incompetent and brainless teens were. Though that was an underlying assumption of the opinion. I’ll be interested in reading the dissent. While I’m not holding my breath, there is always the possibility O’Connor or Scalia will dispute the claim about the capacities of youth.

If I feel up to it, and if people wish me to, I’ll go through Justice O’Connor’s 20 page dissent, and Justice Scalia’s additional 20 page dissent and post again in response to them.

This entry was posted on Tuesday, March 1st, 2005 at 2:28 pm and is filed under Youth Rights. You can follow any responses to this entry through the RSS 2.0 feed. You can skip to the end and leave a response. Pinging is currently not allowed.