death penalty news March 4, 2005
USA: Cruel and Unusual Jurisprudence Both the result and the reasoning of the Supreme Court's decision this week in Roper v. Simmons were heartening to opponents of capital punishment. Not only did the court outlaw the death penalty for those who kill before they turn 18, but its analysis could easily lead to additional constitutional constraints on capital punishment. Yet it is doubtful that the court will follow the national trend of skepticism about the death penalty any further. More likely, the case is the last exhausted gasp of a very strange jurisprudence that the court will now be happy to put to rest. The Eighth Amendment prohibits "cruel and unusual punishments," but for much of its history the United States has allowed the death penalty. In 1958, the court ruled that "evolving standards of decency" should define what constitutes "cruel and unusual," and since then it has been forced to confront the legality of capital punishment in various types of cases. Could the death penalty be imposed for nonfatal crimes? When the defendant did not kill intentionally or at least in a manner exhibiting "extreme indifference to human life"? In answering these kinds of questions (in both of these cases, the response was no), the court committed itself to a challenging set of tasks. First, it would examine the patterns of state laws or court decisions to determine by a rough empiricism whether the death penalty in a particular category has become cruel by virtue of being literally unusual. Of course, this approach raises the perfectly reasonable question of how the scope of the Bill of Rights, which was designed to limit the powers of legislative majorities, could depend in part on the decisions of those very majorities. Next, the court would consult various other sources for evidence of some sort of moral consensus. In doing so, the court would refer to philosophical or moral principles or political attitudes outside the realm of law altogether - and even to international expressions of moral value. This strategy provokes the (again perfectly reasonable) complaint that unelected jurists are now acting like pollsters, assessing the public's moral values. Or, worse, they are becoming arbiters of moral value themselves. Three years ago the court used this approach, looking at trends among the states as well as the scientific consensus on the definition and significance of retardation, to strike down executions of the mentally retarded. And this week the court reconsidered how this test applies to the question of age. In 1988, it ruled that defendants who killed before their 16th birthday could not be executed; now the age is 18. As in earlier cases, the court looked at trends among the states and at legal, scientific and philosophical understandings about when people are mature enough to forfeit their lives for their crimes. What was notable was how candid the court was about two factors that influenced its judgment: the justices' own notions about the morality of executing young killers, and the international condemnation of executing people for crimes committed when they were juveniles. Justice Antonin Scalia was practically apoplectic in his exasperated dissent. "This is no way to run a legal system," he wrote, denouncing this latest round of trend-spotting as irrational and unreliable. And indeed, the change in attitudes toward age has been far less evident than the change in attitudes toward retardation. Given Justice Scalia's analytic dexterity and rhetorical brilliance, his dissent is utterly convincing. But it is also completely beside the point. In Roper, the court exposed its somewhat intellectually embarrassing Eighth Amendment jurisprudence. But it did so in order to overcome the greater embarrassment of one last specific, egregious category of capital punishment. Having noted that only the United States and Somalia had refused to ratify a United Nations convention barring the execution of juvenile criminals, the court's decision comes down to this: on matters of criminal punishment, the United States "now stands alone in a world that has turned its face against the juvenile death penalty." Justice Scalia scorns the court's deference to "the so-called international community" and self-appointed role as the "authoritative conscience of the nation." Yet instead of denying the charge, the court revels in it. At any rate, there is little prospect of more tortured Eighth Amendment jurisprudence. Executing the mentally ill? The universal availability of some kind of "not guilty by reason of insanity" verdict, and the established constitutional rule that states cannot execute someone "presently insane," mean that this category need not be litigated. Executing those under 21? In Roper, the court was unusually categorical: "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." Of course, America retains its outlier status, at least compared with most democratic nations, as a nation that allows the death penalty at all. And the court may issue some further decisions fine-tuning procedures or standards of proof for the use of the death penalty, or requiring enhanced guarantees of adequate representation for capital defendants. It would probably take a truly horrifying event, like a post-execution exoneration through DNA evidence, to sway public opinion so much against the death penalty that the court would consider declaring the practice itself unconstitutional. For now, opponents of capital punishment can hope that state-legislated improvements in criminal procedure and technology, along with political constraints, will address their concerns about wrongful executions. That way, the court will be spared the awkwardness of returning to the cruel and unusual task of assessing America's evolving standards of decency. (source: Opinion, New York Times; Robert Weisberg is a professor of law at Stanford.)
