High court strikes down death penalty for juveniles

[DinoDoc]

re "national" consensus:
Unless the Court has added to its arsenal the power to join and ratify treaties on behalf of the United States, I cannot see how this evidence favors, rather than refutes, its position. That the Senate and the President—those actors our Constitution empowers to enter into treaties, see Art. II, §2—have declined to join and ratify treaties prohibiting execution of under-18 offenders can only suggest that our country has either not reached a national consensus on the question, or has reached a consensus contrary to what the Court announces. That the reservation to the ICCPR was made in 1992 does not suggest otherwise, since the reservation still remains in place today.

[Imran Siddiqui]

Also, this is O'Conner's viewpoint on the issue of foriegn precedent. O'Conner dissented with Kennedy because she found no national concensus, but also disagreed with Scalia over the role of international rulings.

Nevertheless, I disagree with Justice Scalia's contention, post, at 15-22 (dissenting opinion), that foreign and international law have no place in our Eighth Amendment jurisprudence. Over the course of nearly half a century, the Court has consistently referred to foreign and international law as relevant to its assessment of evolving standards of decency. See Atkins, 536 U. S., at 317, n. 21; Thompson, 487 U. S., at 830-831, and n. 31 (plurality opinion); Enmund, 458 U. S., at 796-797, n. 22; Coker, 433 U. S., at 596, n. 10 (plurality opinion); Trop, 356 U. S., at 102-103 (plurality opinion). This inquiry reflects the special character of the Eighth Amendment, which, as the Court has long held, draws its meaning directly from the maturing values of civilized society. Obviously, American law is distinctive in many respects, not least where the specific provisions of our Constitution and the history of its exposition so dictate. Cf. post, at 18-19 (Scalia, J., dissenting) (discussing distinctively American rules of law related to the Fourth Amendment and the Establishment Clause). But this Nation's evolving understanding of human dignity certainly is neither wholly isolated from, nor inherently at odds with, the values prevailing in other countries. On the contrary, we should not be surprised to find congruence between domestic and international values, especially where the international community has reached clear agreement--expressed in international law or in the domestic laws of individual countries--that a particular form of punishment is inconsistent with fundamental human rights.

[DinoDoc]

Does Scalia routinely call other justices morons even in the footnotes of his dissents?

[Imran Siddiqui]

Yes, it's standard practice for him. Especially in cases where he only has 2 other justices defending his view (and on the issue of whether foriegn precedent should be looked at, O'Conner is with Kennedy, Ginsburg, Stevens, Souter, and Breyer).

[Wycoff]

Imran,

We both know that SCOTUS can decide pretty much whatever it wants using whatever reasoning it wants, so long as 5 members agree on the verdict. The only ways to hold them accountable are Constitutional Amendments and Impeachment. I'm aware that its perfectly possible for an SC Justice to completely justify his verdict using only foreign practice. Though it appears in this case that American practices were the paramount reason for Kennedy's decision (with the foreign reasons used to further support the change, like a "cherry on top"), I can easily envision a case in which SCOTUS relies solely on foreign practices, contradicting the practices of the US and all 50 states. Why? Because there's nothing to prevent SCOTUS from doing so.

I think SCOTUS has to be careful when using foreign practices in its reasoning. The reason is because the US and its Constitution is distinct from other countries. We may share common issues, but those issues will be presented in another context, a context that is the result of our different history , government system, customs, court precedents, religiou affiliations, etc. The simple fact that the issues are the same doesn't mean that the same remedies should be used. Its quite possible that their remedies aren't appropriate for our culture, just as our remedies may not be appropriate for their culture.

Foreign practices can be useful. Cases such as the ones that you presented are the quintessential foreign procedure cases. If a case involves other countries its obvious that international standards should be treated in high regard.

I think that this becomes less clear when dealing with purely domestic issues. Foreign practices can reasonably be used as further support for an argument backed by a large amount of domestic evidence that the US should adopt a certain policy that's widely used in other countires. Afterall, the judge could come to this conclusion wihtout that foreign support, and he's using it to further strengthen a position that he would have taken regardless. There's not much harm done in that particular instance (and this seems to be such an instance), but heavily emphasizing on foreign policies in these situations can create a disturbing precedent that could lead to the next possibility.

I think that it would be completely inappropriate for the court to adopt a foreign policy that is out of step with all or almost all of the states and the US. I think that this is wrong for two reasons. First of all, I think that applying foreign remedies in the American context without American support could create the context problems that I mentioned above.

Secondly, it shows that the court is wildly out of step with the country. SCOTUS decisions are monumental, and can only be overturned through great effort. If there is so little support for a position in the country that they have to rely primarily or solely on foreign practice, that indicates that they shouldn't decide that way. At least give the states and/or Congress an opportunity to decide for themselves. This goes beyond mere Consitutional interpretation; its activism. Activism should only be undertaken in the most egregious cases, because it sidesteps the democratic process altogether.

My fear with decisions such as the one we are discussing, the majority's opinion emphasizes foreign practices to too great of a degree. That provides a foothold for a decision based entirely or primarily on foreign policies. A judge can justify his decision by pointing to a decision like this one, then stating "SCOTUS has clearly taken foreign practices into the utmost regard when making our decisions, so it is clear that we must hold..." Even though this case had significant internal justifications , the future case that uses the language I wrote might not. I know that a justice could do this anyway, but a decision like this makes such a position more justifiable.

[Zkribbler]

Originally posted by Imran Siddiqui
Shouldn't it be US Supreme Court... seeing as how MarkG started the thread?

Anyway, I'm with GePap. If we say that 18 is the dividing line, we shouldn't just violate it whenever we feel like. It gives more creedence to nuts like Ozzy .

Though, of course, if they are over 18, fry 'em good

Ah, there we go. Imran & I have been agreeing on too many things lately. It's a relief to see we're at exact opposites again.

IMHO: The Death Penalty is "cruel and unusual" punishment, and should never be imposed.

However, if I'm wrong, then I see nothing in the Constitution which would differentiate a 17-year-old killer for an 18-year-old killer. Teen killers are a problem, and they deserve no extra Constitutional protection.

[OzzyKP]

My thoughts on the O'Connor dissent:

http://www.oneandfour.org/archives/2005/03/the_oconnor_dis.html

Without realizing it as I wrote the earlier break down of Kennedy's majority opinion for Roper v. Simmons, I seem to have made many of the same points Justice O'Connor made in her dissent.

She calls into question the assertion in the majority opinion that there is a substantive "consistency of direction" that would warrant changing the law. Justice O'Connor disputes whether there truly has been a great movement by the public against all minor executions, and states there can be little comparison between the movement in the last 15 years and the movement that was evident at the time Thompson v. Oklahoma was decided. She does grant that national mood and state law is a good indicator of "contemporary values" and should be given "great weight", she places more emphasis on the independent moral judgments of the court itself, taking us to the main issues this case deals with: the capacity and competency of youth.

O'Connor doesn't make any sweeping endorsements of the rationality and responsibility of young people, saying "It is beyond cavil that juveniles as a class are generally less mature, less responsible, and less fully formed than adults, and that these differences hear on juveniles' comparative moral culpability." However instead of accepting that generality as sufficient justification for overturning the juvenile death penalty, she provides a tempered though surprisingly spot-on youth rights rebuttal.

Justice O'Connor states that the Court was wrong to apply a general assumption about youth as a class to all youth within that class. Such an action ignores the significant number of outliers who can very well demonstrate adult levels of reasoning and understanding. Specifically she points to the facts of the case before them, of Christopher Simmons, 17, who disturbingly murdered a woman after much pre-meditation, planning, and prior discussion, "Simmons' prediction that he could murder with impunity because he had not yet turned 18-- though inaccurate--suggests that he did take into account he perceived risk of punishment in deciding whether to commit the crime." I don't see how any rational person could look at the details of this case and conclude anything different. Certainly Simmons weighed the punishment.

If this is the chief point in dispute regarding the rationality of youth, we should quite clearly declare most youth, even those of far younger ages than Christopher Simmons, as rational. A simple pro vs. con analysis is intuitive and I recall it being applied by me and my friends as far back as my memory goes, to 7 or 8. The factors we considered in that analysis were no doubt limited because of our limited experience. For example a friend refused to call a 1-800 number for fear he would get in trouble with his parents and ramp up massive charges on the bill. He was wrong to confuse 1-800 with 1-900, but that doesn't affect the fact he made a rational analysis and weighed the pros vs. cons of the situation. I believe we were 7 or 8 at the time.

I contend that cases like this are not merely outliers, as Justice O'Connor implies, but far and away the majority of youth interactions. However I will save that discussion for another day. No matter what proportion of rational youth to irrational youth you decide is accurate, it is important to recognize that both exist. The Court made the faulty assumption that 100% of individuals 17 and under are irrational (or should be treated that way) and 100% of individuals 18 and over are rational (or should be treated that way). This, as O'Connor notes is an illogically inflexible standard to apply, and judges solely on the aggregate, and ignores individual cases:

Although it may be that many 17-year-old murderers lack sufficient maturity to deserve the death penalty, some juvenile murderers may be quite mature. Chronological age is not an unfailing measure of psychological development, and common experience suggests that many 17-year-olds are more mature than the average young "adult." In short, the class of offenders exempted from capital punishment by today's decision is too broad and too diverse to warrant a categorical prohibition. Indeed, the age-based line drawn by the Court is indefensibly arbitrary--it quite likely will protect a number of offenders who are mature enough to deserve the death penalty and may well leave vulnerable many who are not.
Justice O'Connor then attacks any comparisons between young people and the mentally retarded (you go girl!). She states that the mentally retarded are by definition lacking in a sufficient level of cognition and development. Conversely,

"There is no such inherent or accurate fit between an offender's chronological age and the personal limitations which the Court believes make capital punishment excessive for 17-year-old murderers. Moreover, it defies common sense to suggest that 17-year-olds as a class are somehow equivalent to mentally retarded persons with regard to culpability or susceptibility to deterrence."
O'Connor then states that a closely tailored solution existed in the form of the criminal courts who weighed the factors of each case on an individual basis, and judged the maturity and competence of each offender on an individual basis. No evidence was brought by the other side stating that this process was inadequate or faulty. "I would not be so quick to conclude that the constitutional safeguards, the sentencing juries, and the trial judges upon which we place so much reliance in all capital cases are inadequate in this narrow context."

She then goes on to forge a middle ground between Justice Kennedy and Justice Scalia on the merit and applicability of international practice in interpreting the 8th Amendment. It does have some degree of bearing, but should never be a determining factor. In so far as it does, it is only because of the nature of the 8th Amendment and the evolving standards of decency in civilized society that inform an interpretation of a 200 year old Amendment.

Overall I am very pleased with Justice O'Connor's dissent, though sadly none of the other Justices joined her in it. O'Connor has gained a reputation as the most powerful Supreme Court Justice, and has often been the deciding factor in many important 5-4 decisions. Where Sandra goes, so goes the Court. However it is not the case with Roper v. Simmons. Not only was she not part of the majority in this 5-4 decision, but her dissent was not even joined by the other 3 dissenters. I have yet to read Justice Scalia's dissent, but I doubt I will find close to as much commonality and agreement with Justice O'Connor's. Much of her dissent was spot-on. Regardless of how one views the outcome, this case was terribly decided, was based on very shaky legal evidence and committed many leaps of judgment that Justice O'Connor rightly called out.

http://www.oneandfour.org/archives/2005/03/the_oconnor_dis.html

[Agathon]

This is one of the better threads I've seen recently.

Cheers.

[Imran Siddiqui]

Activism should only be undertaken in the most egregious cases, because it sidesteps the democratic process altogether.

Now, if that be your stance, would you not concur that in a situation where there is near unanimity in the world about the immorality of a practice (and that practice isn't specifically stated as allowable under the Constitution) that that would be one of the 'most egregious cases'?

Furthermore, whether or not a practice is egregious can ONLY be assessed from hindsight in the future. After all, there were plenty of people who thought Brown v. Board of Education was horribly decided and was definetly activism (and it probably was, IMO).

However, the term 'activist' gets thrown around by BOTH sides when the court strikes down a law that they agreed with. After all, a interpretation is never the same for everyone, so any striking down of a law would be viewed as activist by someone (if the court solely used foriegn practice to strike down the death penalty because of 'cruel and unusual', I'd argue that is consistent with interpreting 'cruel and unusual punishment', because no where does it say what should be used in determination of that).

[Sikander]

Originally posted by Zulu Elephant
As far as Im concerned, the fewer people executed, the better - until the DP is abolished.

The reasons given are obviously pretty shoddy and if I disagreed with the decision I'd be spitting nails.

However, some people have argued that the court is overstepping its mark and that the legislature should be deciding these things. How does this compare to the court's decision to abolish segregation - isn't that an example of the court making a decision that would never (at the time) have been passed by congress due to public hostitility in many states

Segregation on its face violated a have dozen provisions of the constitution, and was thus fair game. The majority here resorts to extremely thin arguments bordering on sophistry in order to establish a reason why SCOTUS has jurisdiction on this matter. It's a bad precedent and like you I shudder to think of the instance when it is used on an issue that I politically disagree with.

[Sikander]

Originally posted by DinoDoc
Does Scalia routinely call other justices morons even in the footnotes of his dissents?

Unless the Court has added to its arsenal the power to join and ratify treaties on behalf of the United States, I cannot see how this evidence favors, rather than refutes, its position. That the Senate and the President—those actors our Constitution empowers to enter into treaties, see Art. II, §2—have declined to join and ratify treaties prohibiting execution of under-18 offenders can only suggest that our country has either not reached a national consensus on the question, or has reached a consensus contrary to what the Court announces. That the reservation to the ICCPR was made in 1992 does not suggest otherwise, since the reservation still remains in place today. [7]










[7] Morons!

[Sikander]

Originally posted by Zulu Elephant
And come to think of it (with regards to people argueing - although rightly in my view - that world opinion/world precident should have no bearing on the court's deliberations)...

Wasn't the decision to declare segregation unconstitutional taken (at least in part) because it was thought that the country at the forefront of fighting against communist dictatorships in the world should not be seen around the globe to be infringing on the freedoms of a large majority of it's own people. Surely that is taking a decision based on world opinion?

To the extent this is true, it isn't what we want to see from the courts, ie driven by political rather than legal considerations. Again just because we agree with the outcome it doesn't justify the means to achieve that outcome . Aside from the potential for massive abuse that this gives our unelected serving for life Justices, it also absolves the political branches of their responsibility to act and does so in a way that allows very little room for reconsideration should a later group of good justices (who actually care about stuff like the law and precedence) wish to alter it.

[Wycoff]

Originally posted by Imran Siddiqui
Now, if that be your stance, would you not concur that in a situation where there is near unanimity in the world about the immorality of a practice (and that practice isn't specifically stated as allowable under the Constitution) that that would be one of the 'most egregious cases'?

Maybe, maybe not. If none of the states feel that something should be decided in a way, then IMO foreign practice is not good enough of a reason to decide against them (unless its clear that the practice, while universally held in the US, cannot pass the heightened scrutiny test against laws that are primarily designed for discriminatory purposes)

Furthermore, whether or not a practice is egregious can ONLY be assessed from hindsight in the future. After all, there were plenty of people who thought Brown v. Board of Education was horribly decided and was definetly activism (and it probably was, IMO).

The problem is, for every Brown , SCOTUS passes a few Lochners.

There will always be discontent in some quarters after a decision, but deciding something in completely opposition to the position of the rest of the country is something that SCOTUS should not do without the most compelling reasons, reasons compelled by the heightened scrutiny test. Foreign practices should not compel SCOTUS' actions, for the reasons I stated before.

[chequita guevara]

Originally posted by Imran Siddiqui
Yes, it's standard practice for him. Especially in cases where he only has 2 other justices defending his view

You mean Thomas plus one other Justice, right?

[Imran Siddiqui]

Though you do realize the heightened scrutiny test is solely a Court invention, right? No one actually voted on having such a test for violations of the 14th Amendment. So I wonder what is the difference between using any Court invention in determining if there is a compelling reason to strike down law? Compelling reason is of course to be decided by the Court which is entrusted with such power.