« Politics as Hedonism | Main | Reader Survey »

Exectuting Minors

I'm quite sure that banning the execution of minors is not going to be a serious impediment to American crime control efforts (the practice is, frankly, too rare to make much of a difference either way), but the Supreme Court's conduct here seems mighty dubious. Or, rather, the conduct of the swing justices is dubious. The view that exectuting minors is unconstitutional because exectuting anyone is unconstitutional is straightforward and reasonably sensible. But the decision actually handed down today not so much. The "evolving consensus" business is weird and curiously circular. It seems extraordinarily inconsistent with the general principles of American federalism to take the fact that most states don't do something as evidence that a minority of states should be forbidden from doing it.

But more to the point, I think, any time you have age limits (for voting, for drinking, for driving, for exectuting) you're obviously engaged in arbitrary line drawing. Nothing magically happens to people on their 18th birthdays. Now, it's better not to be arbitrary when possible, but the world needs some arbitrary lines to be drawn from time to time. But this sort of enterprise really isn't the sort of thing courts should be getting into. Legislators working through the political process -- governed by compromise, expediency, etc. -- are in the business of drawing arbitrary lines all the time. Courts, I think, should really try to avoid getting into this sort of thing which is really inherently political.

March 2, 2005 | Permalink

TrackBack

TrackBack URL for this entry:
http://www.typepad.com/services/trackback/6a00d8345160fd69e200d83457ea0c69e2

Listed below are links to weblogs that reference Exectuting Minors:

» DEMOCRACY. CANCELLED. The Supreme Court pulls another law from PRESTOPUNDIT
from out of its ass: "The age of 18 is the point where society draws the line for many purposes between childhood and adulthood. It is, we conclude, the... [Read More]

Tracked on Mar 2, 2005 12:06:08 PM

» Supreme Court Overrules Death Penalty for Minors from Outside The Beltway
High Court Ends Death Penalty for Youths (AP) The Supreme Court ruled Tuesday that the Constitution forbids the execution of killers who were under 18 when they committed their crimes, ending a practice used in 19 states. The 5-4 decision throws o... [Read More]

Tracked on Mar 2, 2005 1:22:59 PM

» If we don't kill the kids, who will? from The Bellman

I'm no fan of the death penalty, and even though I lived in Texas for awhile I was shocked to learn today that Texas has, or rather had, 29 minors on death row. All the same, I'm not too impressed with yesterday's [Read More]

Tracked on Mar 2, 2005 3:22:48 PM

Comments

"The "evolving consensus" business is weird and curiously circular. It seems extraordinarily inconsistent with the general principles of American federalism to take the fact that most states don't do something as evidence that a minority of states should be forbidden from doing it."

Well, what do you think the word "unusual" means in the relevant Constitutional clause?

Posted by: Petey | Mar 2, 2005 11:03:58 AM

"The 'evolving consensus' business is weird and curiously circular."

Why then, Matt, don't you enlighten us all with what you believe would be an appropriate legal test to be used when applying 8th Amendment?

Posted by: Matt Taylor | Mar 2, 2005 11:10:40 AM

The decision somehow reminds me of Lawrence, in that an evolving political consensus allowed a new interpretation. The minorities affected or disenfranchised (or whatever) are a)people who oppose gay equality, and b) states that want to execute minors.

"should really try to avoid getting into this sort of thing which is really inherently political."

If you say so. I am trying to reconcile a pragmatic, empirical view of society with a "law" and judiciary that are somehow completely outside of politics. There are adequate political restraints on judges who become corrupt or overbearing.

Why do we have "interpretive philosophies"? Is this a necessary illusion of an a-political SCOTUS? Why don't we replace SCOTUS with a computer?

Posted by: bob mcmanus | Mar 2, 2005 11:18:02 AM

My 18th birthday was quite magical.

Sorry. I couldn't resist.

Posted by: Kris Markel | Mar 2, 2005 11:21:43 AM

What Bob said. Clearly. It's all political and it's all subjective, this is how it should be and it's the only way it can be.

Posted by: abb1 | Mar 2, 2005 11:22:18 AM

Matt, you're talking out your ass more than usual here. You just don't have the background in law to be quibbling with this. If you really cared about federalism, that would be one thing, but you don't.

Posted by: bobo brooks | Mar 2, 2005 11:31:28 AM

the practice is, frankly, too rare to make much of a difference

This "practice", is a serious human rights abuse.
And stopping it makes all the difference in the world. And, yes if the politicians, the prosecutors, and the lower court judges are not willing or able to stop this, it is upon the SC to make an end to this "practice".

And as for the arbitraryness of 18 years, consult your fellow
bloggers at Crooked Timber, where there is a current discussion relating to this "Sorites paradox". Not my cup of tea, though.

Posted by: Dude | Mar 2, 2005 11:33:37 AM

What Kris said.

Posted by: Dan the Man | Mar 2, 2005 11:33:45 AM

I thought it wasn't an end to executing convicted capital murderers under 18 --" exectuting minors" -- but of executing those convicted of capital murders committed under the age of 18? Good riddance, anyway.

Posted by: Dabodius | Mar 2, 2005 11:34:45 AM

The "evolving consensus" business is weird and curiously circular. It seems extraordinarily inconsistent with the general principles of American federalism to take the fact that most states don't do something as evidence that a minority of states should be forbidden from doing it.

If by the "principles of American federalism", you mean the principles under which the US government was set up prior to the Civil War and, specifically, the 14th Amendment, you are correct.

OTOH, the restrictions on the powers of states in the post-Civil War Amendments -- the 13th, 14th, and 15th -- were all about overturning those principles to the extent that fundamental elements of free society would no longer be matters where states where free. And freedom from cruel and unusual punishment -- by standards which do evolve considerably with time -- have been such a fundamental element in the Anglo-American tradition since the English Bill of Rights of 1689; they were incorporated in the 8th Amendment not to create the protection, but to preserve it. And that prohibition is incorporated on the states by the 14th Amendment.

But more to the point, I think, any time you have age limits (for voting, for drinking, for driving, for exectuting) you're obviously engaged in arbitrary line drawing. Nothing magically happens to people on their 18th birthdays. Now, it's better not to be arbitrary when possible, but the world needs some arbitrary lines to be drawn from time to time. But this sort of enterprise really isn't the sort of thing courts should be getting into.

If drafters of laws -- and the Constitution and its protections are included -- don't want the courts drawing arbitrary lines, then they should draft provisions that are so crystal clear that there is no room for that.

OTOH, drafters of laws often would rather have courts writing the detailed rules as actual controversies arise given the choice between that and detailing laws to quantum precision and exacerbating the risk of gross unintended consequences of an overdetailed code of laws whose interactions becoming impractical to analyze.

Posted by: cmdicely | Mar 2, 2005 11:37:00 AM

Matt Taylor,

The proper analysis is to look at the text of the 8th Amendment, look at whether our nation executed minors at the time of the ratification of the bill of rights (It did), and then conclude that so long as the state of Missouri's execution of minors did not exceed punishments that were carried out by the colonies at time of ratification (It doesn't), then that is the end of the constitutional inquiry. To do anything else is to make public policy for the entire nation from the bench.

And anyone who is a favor of "evolving standards of decency" - for a court to accept that as a standard by which to interpret the meaning of the constitution - you must also be willing to accept the flip-side; that should our society devolve, then that will also change the meaning of the constitution. Imagine a scenario where the supreme court decides that since our society is more callous and depraved than ever before the 8th amendment now means that the government can execute person's for sex offenses, child offenses ect...

The whole point is that the court is incapable, (or at least less capable) than our legislatures to make such determinations. BUT MORE IMPORTANTLY, they don't have the authority to do so in the first place.

Posted by: MJ | Mar 2, 2005 11:42:11 AM

A couple quick points:

1)There is nobody on the current court who believes the death penalty is unconstitutional in all cases, so in that sense everyone in the majority is a "swing justice."

2)While I'm not crazy about the decision, I think cmdicely's right that the federalism issue doesn't get one very far; since the states are now bound by the 8th Amendment, it's just begging the question. On constitutional issues, states are not, in fact, permitted to diverge from a national consensus. I can see an argument that given a vague constitutional principle such as the cruel and unusual punishment clause, the court should simply defer to legislatures (although this argumnent isn't plausibly available to any current justice.) One can also disagree with Kennedy's claim about what constitutes a consensus. But I don't think there's any way to determine whether a punishment has become "cruel or unusual" without looking at this kind of empirical evidence.

Posted by: Scott Lemieux | Mar 2, 2005 11:43:58 AM

And as for the arbitraryness of 18 years, consult your fellow
bloggers at Crooked Timber, where there is a current discussion relating to this "Sorites paradox".

Or, heck, read the actual ruling itself:

Drawing the line at 18 years of age is subject, of course, to the objections always raised against categorical rules.
The qualities that distinguish juveniles from adults do not disappear when an individual turns 18. By the same token, some under 18 have already attained a level of maturity some adults will never reach. For the reasons we have discussed, however, a line must be drawn. The plurality opinion in Thompson drew the line at 16. In the intervening years the Thompson plurality's conclusion that offenders under 16 may not be executed has not been challenged. The logic of Thompson extends to those who are under 18. 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.

Posted by: cmdicely | Mar 2, 2005 11:45:16 AM

cmdicely brings up a good and often overlooked point. It is INCREDIBLY hard to draft a law with "provisions that are so crystal clear that there is no room for that" (judicial interpretation). So the courts often have little choice but to interpret, interpolate, and sometimes flat out invalidate.

Posted by: Butch | Mar 2, 2005 11:48:05 AM

any time you have age limits (for voting, for drinking, for driving, for exectuting) you're obviously engaged in arbitrary line drawing....this sort of enterprise really isn't the sort of thing courts should be getting into.

You mean the way they did in, say, Roe v. Wade?

Posted by: Dan Simon | Mar 2, 2005 11:53:30 AM

MJ, should Marbury v. Madison be overturned? Do you see this Court, or any Court, doing that?

Just wondering...

Posted by: litho | Mar 2, 2005 11:54:23 AM

But given that the court doesn't think 18 is line which distinguishes all juveniles from all adults, why build the distinction into the constitution, rather than let trial courts and state legislatures deal with it on a case by case basis. Also, some people seem to be misunderstanding why the "trend of the states" argument is bad. It's not bad because it allows what the 8th Amendment prohibits to change in a changing society, it's bad because it's basically incorporating opinion polling into the meaning of the 8th Amendment.

Posted by: washerdreyer | Mar 2, 2005 11:55:06 AM

The proper analysis is to look at the text of the 8th Amendment, look at whether our nation executed minors at the time of the ratification of the bill of rights (It did), and then conclude that so long as the state of Missouri's execution of minors did not exceed punishments that were carried out by the colonies at time of ratification (It doesn't), then that is the end of the constitutional inquiry. To do anything else is to make public policy for the entire nation from the bench.

I don't think that's right at all. "Cruel and unusual" clearly must be read as having some consistent meaning, but its quite possible for that consistent meaning to refer to the relation of practices to a social context.

It is very much historically clear that the 8th Amendment was not written to create a new protection, but to incorporate protections that had been part of the legal landscape since the 1689 into the new Constitution. But those protections were not, I don't think, viewed as prohibiting a fixed set of punishments since 1689.

Now, one change between the old system and the new is that the primacy in resolving Constitutional controversies in the American system rested in an independent branch of government; but that did not change the incorporation of an evolving standard into a fixed standard, it just changed who was principally responsible for evaluating the evolving standard.

If we, as a nation, feel that our legislators are better suited to judge what punishments ought to be prohibited by contemporary standards, that we ought to repeal the context-dependent language of the 8th Amendment, replace it with a list of specific prohibited punishments, and -- if we want to maintain an evolving national standard -- a power of Congress to declare additional offenses prohibited.

OTOH, the existing system of setting a national standard gives far more weight to the state legislatures in setting that standard than Congress would; generally, when the Supreme Court has ruled a practice "Cruel and Unusual", they have done so based on evidence of a national consesnsus including the enacted view of a majority of state legislatures, the trend among state legislatures, and other external evidence of an evolving consensus. They have not just

Posted by: cmdicely | Mar 2, 2005 11:56:00 AM

Also, some people seem to be misunderstanding why the "trend of the states" argument is bad. It's not bad because it allows what the 8th Amendment prohibits to change in a changing society, it's bad because it's basically incorporating opinion polling into the meaning of the 8th Amendment.


So? Why is that bad. It is clearly the case, historically, that the 8th Amendment's "cruel and unusual" provision was adopted specifically to prevent the imposition of punishments that shock the public conscience, and specifically rejecting the idea that legislatures were better able to decide which punishments were appropriate.

So it seems to be that your objection is that the standard allows the Constitutional provision at issue to do exactly what the framers intended it to accomplish.

Posted by: cmdicely | Mar 2, 2005 12:06:34 PM

cmdicely-
I find majoritarian uses of constitutional protections worrisome for what seem to me fairly clear slippery slope reasons. I want the constitution granting whatever protections it happens to grant irrespective of what majorities think.

Posted by: washerdreyer | Mar 2, 2005 12:13:54 PM

I want the constitution granting whatever protections it happens to grant irrespective of what majorities think.

But it's also anti-majoritarian--do you want majorities within a given state to be able to decide that any age is fair game? Because I'm pretty sure 14 wouldn't shock the "conscience" of the majority in Texas.

Posted by: bobo brooks | Mar 2, 2005 12:18:51 PM

I'm seconding other commenters who suggest you're in over your head here, Matt. Way over your head.

Courts passing judgment on a legislature's arbitrary line-drawing for issuing drivers' licenses would, indeed, be quite wrong.

It is an ENTIRELY different matter when the line-drawing implicates Constitutional provisions & protections. If you read the opinion, and the opinion (authored by Scalia) from 1989 that last dealt with the execution of those who committed crimes as minors, you would note that in 1791, at the time the 8th Amendment was ratified, it was acceptable to execute 7 year olds.

Hands up anyone who thinks a state frying a 7 yr old is Cruel & Unusual?

We should not forever be bound by the conceptions of the Founders when it comes to necessarily open & vague terms, such as cruel & unusual. Such terms absolutely must be interpreted in light of the society in which the interpreters currently live.

Your alternative is the State of Texas poppin' a cap in a 7 year old.

Posted by: J | Mar 2, 2005 12:23:35 PM

A lot of people say, with great confidence, that the proper way to interpret the 8th Amendment is to see what punishments either: (1)were considered OK in 1789 or (2) existed in 1789. (It's never clear which they mean, or whether they even recognize that these are two different questions.)
The source of this confidence, however, is obscure. Certainly it isn't based on the language of the amendment, "cruel and unusual" having no temporal referent. I've never seen anyone, let alone a self-styled "originalist," roll up his or her sleeves and dig into the history in any serious way.
What's really going on, and it's a legitimate problem, is that if "cruel and unusual" means anything other than a laundry list of 1789's common or accepted punishments -- and it probably does, or the framers could easily have done a laundry list -- then you're stuck with something very much like "evolving standards of decency," which is inherently squishy and presents real temptations to substitute their own, personal standards of decency for society's (which, yes, can DE-volve as well as E-volve; legal evolution, like biological, is not directional). This is a real problem to which there is no fail-safe solution, only the common-sense observation that people who go through law school, pursue legal careers, and get to be judges on high courts tend not to be far removed from mainstream values, though they will tend to skew them in an (old-fashioned) conservative and elite direction, which would hardly have bothered the framers.
If that isn't good enough, then too bad, there's nothing else. Unless you make shit up.

Posted by: C.J.Colucci | Mar 2, 2005 12:24:45 PM

I guess I'm with the O'conner dissent, at least partially. Terms like "cruel and unusual" have to be read as incorporating evolving nationwide standards. (If not, then just about all non-trivial bail bonds are unconstitutional, since the amounts involved would have been "unreasonable" in 1791.) But it's ludicrous to assert that a consensus exists against juvenile executions when the position has only the barest possible of majorities among their own sample of the population. [I'd also wager that you could have found at least a solid majority in favor of the position "John Lee Malvo should face the death penalty if convicted", and no judicial alchemy can turn a minority into a consensus instantly.]

I think there's a more general problem with this court issueing opinions with legal reasoning that does not actually reflect their decision-making process: we do not seriously expect this court to take state legislatures' passing abortion restrictions or unborn-victims-of-crime laws as evidence of a "national consensus" on the personhood of fetuses or medical marijuana laws and referenda as evidince of a "national consensus" on a privacy right in drug use. These kinds of "use once, then burn" Supreme Court rulings are damaging the entire legal system. Better for the majority of five to have admitted that they changed their own minds and consider executions for crimes committed as juveniles objectively cruel and/or unusual, I think...

Posted by: Jeff R. | Mar 2, 2005 12:28:52 PM

It would seem to me to be more justifiable if the court defined "consensus" (as least as it applies to the laws of the 50 states) to include the number of states required to ratify a constitutional amendment (38); which clearly is not the case currently.

Posted by: Ugh | Mar 2, 2005 12:31:33 PM

The comments to this entry are closed.