March 7 USA: Kennedy Reversal Swings Court Against Juvenile Death Penalty In banning capital punishment for juvenile offenders last week, the Supreme Court once again demonstrated its pivotal role in domestic and, indeed, world affairs. The 5 to 4 ruling swept aside laws in 20 states that permitted juries to sentence 16- or 17-year-old murderers to death, thus ending the United States' status as the last country on Earth that sanctioned the execution of those who commit crimes when they are younger than 18. Justice Anthony M. Kennedy had joined a 1989 Scalia opinion allowing the death penalty for juveniles. And, to a large extent, this result was due to a remarkable evolution by a single justice: Anthony M. Kennedy. It is sometimes said that justices "grow in office," producing opinions and casting votes on the court that confound the expectations of those who appointed them. Kennedy, 68, a 1988 appointee of President Ronald Reagan, has shown his unpredictability in the past. He changed his mind in the middle of a crucial 1992 case, casting a fifth vote to uphold Roe v. Wade; he disappointed conservatives again with a landmark pro-gay-rights opinion in 2003. Liberals gnashed their teeth when Kennedy flirted with permitting the Florida recount to continue in 2000 -- before casting a 5th vote to shut it down and propel George W. Bush into the White House. But it is not often that a member of the court reconsiders his past views on a major issue as thoroughly as Kennedy did last week, when he supplied the court's 4-justice liberal bloc the 5th vote it needed to abolish the death penalty for juveniles. In 1989, during his 1st full term, Kennedy voted with a 5-justice majority to uphold the death penalty for juvenile offenders. In that case, Stanford v. Kentucky, he joined an opinion by fellow Reagan appointee Antonin Scalia. Reaching the opposite result in last week's case, Roper v. Simmons, Kennedy, writing for the majority, argued that times have changed. The number of states that either have no capital punishment or do not allow it for offenders under 18 had reached 30 -- evidence, Kennedy wrote, of "a national consensus" against the juvenile death penalty that had emerged since Stanford. But his opinion also repudiated the legal reasoning he embraced in Scalia's opinion 16 years ago. For example, the 1989 opinion calculated "national consensus" differently, excluding non-death-penalty states from the count; last week, Kennedy wrote that Stanford was wrong about that. In 1989, Scalia, with Kennedy's support, wrote there was "no relevance" to laws that set 18 or more as the legal age for adult activities such as drinking and voting -- and that it was "absurd" to consider them. Last week, Kennedy appended to his opinion a list of state laws setting the age for voting, jury service or marriage without parental consent at 18 or above. "The age of 18 is the point where society draws the line for many purposes between childhood and adulthood," Kennedy wrote. "It is, we conclude, the age at which the line for death eligibility ought to rest." In 1989, Kennedy agreed with Scalia in brushing aside scientific studies on the relative immaturity of adolescents. Such data could not prove capital punishment fails to deter all 16- and 17-year-olds, or that juveniles are inherently less morally blameworthy than adults; judgments about deterrence and blameworthiness should be left up to legislatures and juries, the Scalia-Kennedy opinion said. Last week, though, Kennedy cited "scientific and sociological studies" for the proposition that "it would be misguided to equate the failings of a minor with those of an adult." The weighing of such factors could not be left up to juries, Kennedy wrote, because there is "an unacceptable likelihood" that jurors would be "overpower[ed]" by the brutal details of some teenage crimes. Kennedy had joined Scalia in 1989 in "emphatically rejecting" the suggestion that the court could apply its "own informed judgment" to the question of whether death is too harsh a punishment for any juvenile crime. Last week, he wrote that that part of Stanford had been "inconsistent with prior . . . decisions." And, although he had joined Scalia in 1989 in "rejecting the contention . . . that the sentencing practices of other countries are relevant," this time Kennedy wrote that "it is proper that we acknowledge the overwhelming weight of international opinion against the juvenile death penalty." Justice Anthony M. Kennedy had joined a 1989 Scalia opinion allowing the death penalty for juveniles. Not surprisingly, Scalia's dissent in Roper last week took aim at Kennedy, albeit without attacking him by name. "The votes in today's case demonstrate that the offending of selected lawyers' moral sentiments is not a predictable basis for law -- much less a democratic one," he noted. Invoking the motto that adorns the court's main entrance, Scalia, 68, added: "What kind of Equal Justice under Law is it that -- without so much as a 'Sorry about that' -- gives as the basis for sparing one person from execution arguments explicitly rejected in refusing to spare another?" But Justice John Paul Stevens, the only member of the court's current liberal bloc who was on the bench in 1989, and who has now lived to see his dissent in Stanford become the law of the land, fired back in defense of Kennedy. Stevens, 84, wrote that if Scalia's view of the Bill of Rights -- that its meaning was fixed by the common-law standards of 1791 -- were to prevail, there would be nothing unconstitutional about the execution of a 7-year-old child. "[T]hat our understanding of the Constitution does change from time to time has been settled since John Marshall breathed life into its text," Stevens wrote. (source: Washington Post) **************************** Too Young to Die----The Supreme Court nixes the juvenile death penalty. What that says about the Justices' thinking--and ours In his Norman, Okla., law office, attorney Steven Presson stores 2 unusual keepsakes. One is a leather pouch that holds the ashes of Sean Sellers, the only person executed for a crime committed as a 16-year-old since the death penalty was reinstated in the U.S. in 1976. Sellers-- who murdered his mother, his stepfather and a store clerk -- was dispatched by lethal injection in 1999, when he was 29. Presson's other memento is a plastic box containing the ashes of Scott Hain, who, it now seems fair to say, was the last juvenile offender to be executed in the U.S. Hain, sent to his death in 2003 at the age of 32, was 17 when he and a friend committed a grisly double murder. Presson, who represented both boys, found it "very bittersweet" when the U.S. Supreme Court ruled last week that it was cruel and unusual to sentence anyone to death for crimes committed before the age of 18. "I'm happy for those on death row, but it came six years too late for Sean and 2 years too late for Scott," says Presson. "We've been arguing for decades that kids don't have the same moral culpability that adults have, and finally, finally, they listened." It took 16 years for the high court to come around to Presson's point of view, by a narrow 5-to-4 vote. In 1989 the court ruled 5 to 4 the other way. Justice Antonin Scalia, who wrote the 1989 decision, argued that there was neither a "historical nor a modern societal consensus" forbidding capital punishment for 16- or 17-year-olds (though the court had found such a consensus for those under 16 a year earlier). Last week, however, Scalia was on the short side of the decision. What changed? The views of Justice Anthony Kennedy, for one thing. While Kennedy voted with Scalia in 1989, he wrote a very different majority opinion this time around. Why did Kennedy change his mind? Legal tradition invites him to do so. Since 1958 the court has applied a flexible standard to interpreting the Eighth Amendment's ban on "cruel and unusual punishments." What we mean by the phrase, wrote then Chief Justice Earl Warren in Trop v. Dulles, depends on "the evolving standards of decency that mark the progress of a maturing society." How do you know that society no longer believes in sentencing a 17-year-old killer to death? Kennedy's argument mirrors his reasoning in a 2002 decision that outlawed death sentences for the mentally retarded. He notes that since 1989 5 states have banned capital punishment for juveniles, making the practice illegal in 30 states, including the 12 with an outright ban on executions. Second, Kennedy cites scientific literature showing that, like the retarded, adolescents lack mature judgment and a full appreciation of the consequences of their actions. They are also more vulnerable than adults to peer pressure. Third, Kennedy points out that only 7 other countries have executed juvenile offenders since 1990, and all 7 have repudiated the practice: "The United States now stands alone in a world that has turned its face against the juvenile death penalty." "This reference to international practices is a very big deal," says Cass Sunstein, a constitutional scholar at the University of Chicago Law School, and is part of a surprising new trend in Supreme Court thinking. Overseas legal practices were also cited by the court in the 2002 ruling on the mentally retarded and in a 2003 decision overturning a Texas law banning gay sex. For his part, Scalia blasted his brethren for suggesting that "American law should conform to the laws of the rest of the world" and pointed out that the U.S. has unique legal traditions. In the 12 states where juvenile offenders have been languishing, death sentences will be lifted for 72 offenders. That brought dismay to many victims' families. Martin Soto-Fong was 17 in 1992 when he and 2 accomplices robbed the El Grande Market in Tucson, Ariz., for $300 and shot 3 workers. Richard Gee, who lost a brother and an uncle that day, is not happy to see the murderer exit death row. "We had him at the gates of hell," he says, "and he got kicked back." (source: TIME Magazine) ************************** America will have to care for its kids Now that the U.S. Supreme Court has decided that America can no longer kill its young, we can't take the easy way out anymore. The court's decision to abolish capital punishment for juvenile offenders means that we must find other ways to raise all of our children so that none of our children become offenders who commit the worst of crimes. It means we'll have to focus more on prevention and intervention instead of punishment and execution, community nurturing instead of community rejection. It means we cannot pretend that we're not all responsible for America's children. Oh, you know what I'm talking about. We work hard and set our individual rules and standards and make sure that our own children do well. Then we send them out into a world where those children we've watched become frustrated and enraged and out of control are waiting for them? And only then do we become concerned? 73 lives saved We know these children. They walk around like time bombs waiting to go off, and we pay attention only enough to make sure they don't explode near our lives. The problem with that logic is you can't always tell when a bomb will explode. And children aren't born as bombs. The majority of the court believes that executing juvenile offenders, even if we wait for them to grow up before we kill them, is cruel and unusual punishment, especially since social scientists say that children are too immature to bear the same level of accountability as adults for their actions. Every other country in the world grasped that idea long before the United States did. Justice Anthony M. Kennedy wrote: "From a moral standpoint, it would be misguided to equate the failings of a minor with those of an adult, for a greater possibility exists that a minor's character deficiencies will be reformed." "Our determination," Kennedy added, "finds confirmation in the stark reality that the United States is the only country in the world that continues to give official sanction to the juvenile death penalty." The court's action saved at least 73 lives, including that of the defendant in the case that prompted their ruling -- Christopher Simmons. He was 17 when he kidnapped a woman from her house and threw her into a river. He's now 29. But what might he have been if someone had gotten to him before he was 17? 2.3 million kids to help To consider how many children are arrested in America, let's just compare it with the number of children who are doing something else. Law enforcement agencies arrested an estimated 2.3 million juveniles in 2002, according to the U.S. Department of Justice Department's Office of Juvenile Justice and Delinquency Prevention. Juveniles accounted for 17 % of all arrests and 15 % of arrests for violent crimes. The number of juvenile arrests for murder was 1,360, down from 3,840 in 1993. So, let's see -- that's 1,360 arrests for murder and 2.3 million arrests overall. What else did 2.3 million children do in 2002? While about 2.3 million children were being arrested, about 2.4 million were enrolling as first-time freshmen in the nation's colleges. I wonder what might have happened if we'd paid attention to those future juvenile offenders sooner? (source: Column, Rochelle Riley, Detroit Free Press) *********************** Gaze into alleged murderer's eyes, but can you see the evil? "Smiling faces show no traces of the evil that lurks within."-- FROM A SONG BY THE UNDISPUTED TRUTH Did you search for murder in Dennis Rader's eyes? I certainly did. He looked disheveled and disgruntled, as anyone might in a mug shot. But did you see anything else? An unsettling gleam like the one in Charles Manson's eyes? The remote coldness that lurks in Theodore Kaczynski's? Did you see murder in Rader's eyes? It's a judgment call, of course, but I didn't. He looked like Joe Blow's cousin, a fat, balding white guy of late middle age, the kind of person you'd pass a million times on the street without registering that he was there. Hence, the shock that came when police in Wichita, Kan., announced on Feb. 26 that he is BTK - the initials stand for Bind, Torture, Kill - architect of a murder spree that has claimed 10 lives and terrorized Kansans since 1974. Rader, we are told, was the very epitome of ordinary. He was a 59-year-old Boy Scout leader, a married father, council president of the Lutheran Church he has attended for more than 25 years and a compliance inspector for suburban Park City, where he was in charge of, among other things, animal control. And yet, if police are correct, it was all a fraud, his suburban respectability a mask for a killer who hid in plain sight, taunting authorities as he did his bloody work. It's a profile that, I think, brings us face to face with what the writer Hannah Arendt meant when she subtitled her treatise on the Holocaust "a report on the banality of evil." Point being that we tend to think of evil as something outside ourselves, something other than human. We regard it as an exotic, terribly obvious thing that announces itself with devil's horns and malicious leers, something you see coming a mile away. But evil is more ordinary than that. Think of all the perpetrators of the Holocaust whose names were not Hitler, Himmler or Eichmann - ordinary shopkeepers, farmers and housewives who simply averted their eyes, chanted the slogans, allowed themselves to be swept up in fervor and in doing so went along with the extermination of a people. Think of the famous experiment Stanley Milgram conducted in 1963. He told his subjects they were administering electrical shocks to an unseen victim whose "sufferings" - screams and grunts - could be heard on an intercom. Milgram found that most people would keep shocking the unseen person, even administering what they were told were dangerous levels of voltage, if instructed to do so by an individual in authority. Think of Damien Stiffler. He was a 3-year-old in Blythe, Calif. Police say that one day in 2000, his sister and a cousin, ages 6 and 5, got it in their heads to kill him. One of them, they decided, would sit on his legs, while the other would hold a pillow over his face. A willful murder, carried out by children of kindergarten age. Finally, think of Abu Ghraib, the notorious prison in Iraq where ordinary American soldiers became torturers and brutalizers and no one thought to say no. Or even remembered that this was wrong. When we look into Rader's eyes for murder, then, I think what we're really looking for is reassurance, something that says he is different from us somehow, fundamentally foreign in some way to our ordinary lives. The alternative is unsettling, suggesting as it does that humanity is a skin we slip out of all too easily and civilization a conceit in which one would be wise not to repose too much faith. That alternative requires you to wonder what is the difference between him and us, where is the turning point, the dividing line, the border a human being must cross in order to become a monster. You look for answers in Rader's eyes and all you see is Joe Blow staring back at you. And you realize: It would be frightening if you saw murder there. But it's even more frightening that you do not. (source: Column, Leonard Pitts Jr., Miami Herald) ************************ Flawed reasoning The Supreme Court has spoken and the death penalty is on its way out. It hasn't been banned as of yet, but the execution of the mentally retarded and juveniles has been declared unconstitutional, further limiting the scope of the death penalty. Last week, the Court's ruling in Simmons v. Roper that 16 and 17-year-olds were exempt from the death penalty, elicited a sigh of relief from the 70 plus murderers on death row in the United States that were spared. Although I disagree with this ruling, the major problem lies in the absurd reasoning the majority used to justify their opinion. For one, almost every case the Court has decided concerning the death penalty has addressed the debate concerning "the evolving standards of decency that mark the progress of a maturing society." That is, what the Court considers to be "cruel and unusual punishment" is contingent upon other facets of social change, or at least so say the more liberal justices on the Court. The framers of the Constitution did not intend for us to simply rewrite the Constitution based on some arbitrary and immeasurable standard. In writing for the majority, Justice Kennedy stated, "When a juvenile commits a heinous crime, the State can exact forfeiture of some of the most basic liberties, but the State cannot extinguish his life and his potential to attain a mature understanding of his own humanity." The proponents of this decision argue that juveniles have not reached a necessary level of maturity, implying a lesser amount of responsibility, and thus cannot be subject to "adult" punishments. If a juvenile who commits a murder is not fully responsible for his actions, how can one justify punishing him at all? If he didn't know any better and can't be held responsible, it seems awfully cruel to sentence him to prison for any length of time. As far as I'm concerned, when you commit adult crimes, you lose your legal protection as a juvenile. Sixteen and 17-year-olds know right from wrong, and any 16 or 17-year-old that hasn't gone on a murdering spree is proof of that. The media, in reporting this decision, never misses a moment to point out that the United States is the last nation in the world to disavow the death penalty for juveniles. Even countries like Iran and Cuba don't execute, at least officially, their juvenile murderers. That's fine, but irrelevant as far as the Court is concerned. At least one would think. After all, Supreme Court Justices are supposed to interpret the U.S. Constitution, not dabble in the domestic affairs of foreign countries. With a lack of respect for the Constitution, Kennedy writes "...the Court has referred to the laws of other countries and to international authorities as instructive for its interpretation of the Eighth Amendment's prohibition of cruel and unusual punishment." There is no reason the Court should ever be looking at another country to help determine the constitutionality of anything. If the Court wants to model our death penalty stance after nations like Iran, why stop there? Let's revoke female drivers licenses and do away with our "innocent until proven guilty" mantra. Justice Scalia rightfully ripped into this ridiculous line of reasoning. He pointed out the fact that the Court doesn't look at other countries for interpretive help with the First Amendment, yet it sees no problem doing so for the Eighth Amendment. After pointing out this inconsistency, he then rejected the idea of using foreign countries as benchmarks altogether. Whether or not one disagrees with the end result of the Court's ruling, it's hard to justify the pathetic line of reasoning used to reach it. Usually, an activist court at least pretends that its ruling is rooted in the Constitution. If this line of reasoning prevails in other cases, the days of true Constitutional interpretation may be coming to an end, and so will the death penalty. (source: Editorial, Elie Dvorin, Daily Illini) CALIFORNIA: Death sentence upheld for Oakland murderer----State Supreme Court rejects appeal by man who killed 2 in 1987 The California Supreme Court has unanimously upheld the conviction and death sentence of an Oakland double-murderer. Cedric Harrison was convicted of the April 27, 1987, 1st-degree murders of Betty Thompson, 34, and Leroy Robinson, 45, slain in an alley near A Street. Prosecutors claimed Harrison shot the 2 because he'd given Thompson $10 for some rock cocaine, but she gave him an actual pebble instead. An Alameda County Superior Court jury found him guilty in May 1992 but deadlocked 10-2 on whether he should be executed or serve life in prison without possibility of parole. A 2nd jury retried his penalty in 1993, recommending death. All death sentences are automatically appealed directly to the state Supreme Court. In an opinion issued Thursday, the court rejected Harrison's claims that he was denied a speedy trial, that a potential juror was unfairly excluded because of her stated inability to vote in favor of the death penalty, that the judge erred by admitting evidence of another attempted murder and that the judge gave faulty jury instructions. Associate Justices Carlos Moreno and Kathryn Werdegar concurred, but found Deputy District Attorney William Tingle's biblical references in a closing argument amounted to prosecutorial misconduct. Tingle invoked the Four Horsemen of the Apocalypse from Revelation, described Harrison as "the disciple of Satan" and urged jurors to "take the sword from (defendant) and cast it down and tell him that he was wrong and may go no further." These were impermissible, the 2 justices concluded, but not worthy of reversing the conviction or sentence. Harrison - who has prior convictions for rape, oral copulation with a minor, kidnapping, assault with intent to commit a felony and robbery - still can pursue a habeas corpus petition. The direct appeal decided Thursday exists only within parameters set at trial, seeking reversible error, while the habeas petition is a reinvestigation of the whole case. (source: Oakland Tribune)
