Bad Decision!

In another one of Anthony Kennedy’s opinions declaring constitutional law based on extra-constitutional sources, the Supreme Court handed down a
5-4 decision declaring that the Constitution bans the execution of individuals who were under the age of 18 at the time they committed a murder. While the case only changes the fates of about 70 or so individuals, it is distressing because it continues a number of trends in recent SCOTUS legislation from the bench.

"The age of 18 is the point where society draws the line for many purposes between childhood and adulthood. It is, we conclude, the age at which the line for death eligibility ought to rest," Justice Anthony Kennedy wrote.

But that line is not absolute. For example, there is no lower age for exercise of the so-called “right to choose” to kill one’s unborn child. Why do the justices conclude that teens have sufficient maturity, stability and intellectual capacity to make that decision? After all, their impulsiveness and willfulness is obvious in the poor choices made which led them to become pregnant in the first place. But I sincerely doubt that the Supreme Court will suddenly declare that the execution of innocents under the age of 18 must stop by those who have not reached the “line... between childhood and adulthood.” As Justice Scalia points out, that is the opposite of what the Court has held in the past.

In other contexts where individualized consideration is provided, we have recognized that at least some minors will be mature enough to make difficult decisions that involve moral considerations. For instance, we have struck down abortion statutes that do not allow minors deemed mature by courts to bypass parental notification provisions. See, e.g., Bellotti v. Baird, 443 U. S. 622, 643.644 (1979) (opinion of Powell, J.); Planned Parenthood of Central Mo. v. Danforth, 428 U. S. 52, 74.75 (1976). It is hard to see why this context should be any different. Whether to obtain an abortion is surely a much more complex decision for a young person than whether to kill an innocent person in cold blood.

So it seems that the law, as it stands now, is that the very simple moral question of whether or not to commit cold-blooded premeditated murder is beyond the ability of those under 18, but those same individuals are deemed capable of the more complex moral calculus involved in taking the life of an unborn child absent the consent (and often even the notification) of their parents. This patently absurd situation springs directly from the twin liberal desires to avoid taking human life by government (a laudable, if unrealistic, desire which results in giving the killer a greater moral weight than the victim) while casting abortion as a feminist sacrament.

But it gets even worse. Consider this Kennedy gem.

"It is proper that we acknowledge the overwhelming weight of international opinion against the juvenile death penalty, resting in large part on the understanding that the instability and emotional imbalance of young people may often be a factor in the crime," he wrote.

Actually, no it isn’t proper that you acknowledge “the weight of international opinion against the death penalty.” It is irrelevant to the issue of constitutionality. Your decision is supposed to be made based upon the laws of the United States, not those of any other country. What does OUR Constitution say? That is the question that should be asked. Even if one considers issues of treaty law, one need to respect the fact that failure to ratify the treaty means the terms of the treaty are irrelevant to your deliberations. That is why the UN Convention on the Rights of the Child cannot be used as a basis for this decision – it was never ratified by the United States Senate, that body charged by the Constitution with ratifying treaties to make them binding. Similarly, the ratification of the International Covenant on Civil and Political Rights (ICCPR) includes a specific reservation, binding under US and international law, in which the US rejects the provisions cited by the court related to the death penalty.

[T]he United States reserves the right, subject to its Constitutional constraints, 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 crimes committed by persons below eighteen years of age.

In other words, the body with the constitutional duty to ratify treaties did so in a manner that gives specific sanction to the application of the death penalty to minors, but the majority of the justices in this case have declared that exercise of authority under the Constitution to be of no effect! So what we have is a court not only assuming the role of a legislature, but taking charge of American diplomacy as well.

And then there is the federalism question. Kennedy notes that "18 states -- or 47 percent of states that permit capital punishment -- now have legislation prohibiting the execution of offenders under 18.” As a result, that is sufficient grounds for telling the other 19 states with the death penalty – 53 percent, if my math is correct – that they cannot execute those under 18. The minority is going to dictate to the majority? And even if one includes all 50 states in the calculus, making it 62 percent refusing to execute 16 & 17 year olds, is that sufficient grounds for striking down the practice? After all, doesn’t each state have a sovereign right to formulate its own criminal code? Or is it now constitutional doctrine that the actions of the state legislature of Texas must be in conformity with those of the state legislatures of a majority of other states? The majority has implicitly driven a stake through the heart of federalism if this will be the standard.

What is the practical result of this decision? Well, for starters, it means that Lee Boyd Malvo, who participated in the multistate spree of sniper murders a couple of years ago, will not be tried for the remaining eight murders beyond he and his companion, John Muhammad, committed in 2002. Since he is currently serving two life sentences, there is no point in continuing with prosecutions that cannot achieve a death sentence for Malvo.

It also means that Christopher Simmons, who attorneys challenged his death sentence, will get to live. What had he done to deserve a sentence of death? Justice Kennedy outlines it well.

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.

By the afternoon of September 9, Steven Crook had returned home from an overnight trip, found his bedroom in disarray, and reported his wife missing. On the same afternoon fishermen recovered the victim’s body from the river. Simmons, meanwhile, was bragging about the killing, telling friends he had killed a woman “because the bitch seen my face.”

This is the animal that gets to live. Christopher Simmons said that he and his friend would “get away with it” because they were minors. It seems he was right. Three hots and a cot for life, courtesy of the taxpayers of the state of Missouri – including the family of Shirley Crook, who received no mercy, due process, or protection from cruel and unusual punishment at the hands of Christopher Simmons and Charles Benjamin.

But beyond that, there is the principle that the Constitution means what it says, not what today’s majority says it means. These are five justices who are drawing a line based upon their own policy preferences, not upon constitutional principle. Justice Scalia, the intellectual giant of the Rehnquist Court, sums up my position well in his dissenting opinion.

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.