The Electric Commentary

Wednesday, March 02, 2005

The Death Penalty

I basically agree with Jon Rowe about the death penalty. I'm against it in general for fear of an innocent being executed (which has never happened in the US as Prof. Rowe correctly points out, although I would like to hear the details of the case mentioned by his father), but in what I call "duh" cases (Dahmer and the like) I see no problem with it.

Yesterday the SCOTUS decided in the case of Roper v. Simmons that sentencing a minor to death violated the 8th amendment prohibition on cruel and unusual punishment. I agree with this sentiment in a general way, however I would like to take this opportunity to point out that Anthony Kennedy is a wishy-washy knob with no judicial philosophy to speak of.

In this opinion he relies on the "National Consensus" (as did the lower court):

The evidence of national consensus against the death
penalty for juveniles is similar, and in some respects
parallel, to the evidence Atkins held sufficient to demon-
strate a national consensus against the death penalty for
the mentally retarded. When Atkins was decided, 30
States prohibited the death penalty for the mentally re-
tarded. This number comprised 12 that had abandoned
the death penalty altogether, and 18 that maintained it
but excluded the mentally retarded from its reach. 536
U. S., at 313Œ315. By a similar calculation in this case, 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 in-
terpretation, exclude juveniles from its reach. See Appen-
dix A, infra.



He also relied on international law, which is a topic for another day. This is all fine and good, however, what does the national consensus have to do with anything? When a majority of the people are in favor of a policy, the way we implement that policy (or alternatively, eliminate that policy) is through the legislature. I'm against sentencing minors to death, but why should my opinion matter in the state of Texas or Utah or New Hampshire or Missouri? Circumstances are different in these states, and it is extremely presumptuous of an unelected federal judicial body to tell them what policies they may implement simply based on national consensus. (Note: The word "Consensus" appears 13 times in Kennedy's opinion.) Orin Kerr presents a similar argument better than I ever could here.

From reading this opinion it appears that Kennedy's opinion, and at least a portion of his jurisprudence, is based on peer pressure. His opinion is the functional equivalent of middle school-aged bullying:

Vermont: Ooohh. Kentucky's sentencing minors to death. None of the cool states are sentencing minors to death.

Wisconsin: Yeahh. We're all way past that. What, did your mom make you do it?

Pennsylvania: Is it hard to sentence kids in those footie pajamas?

Kentucky: You don't know what it's like to be me! We've got minors committing all sorts of heinous crimes!

Rhode Island: Kentucky, I though I knew you. I'm going to the big dance with Delaware instead.


Whether you agree with the policy or not, is this really how you want the Court to make its decisions?

More here, here, and here. Orin Kerr echoes a most common sentiment:

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.

Update: This is pretty good too. As is this.

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