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Tuesday, March 01, 2005

Roper, continued

I have many thoughts on this case, and have yet to completely finish all of the opinions, so I will probably divide up my thoughts into several posts. First of all, I hope in reading the opinion, people don't simply glaze over the facts of this case. Simmons' murder was a particularly heinous crime: he bound up a woman after he had broke into her hose, and threw her off a bridge, all because he felt like killing someone. He was 17 at the time of this crime. Publius begins his post by noting that he really has no trouble with the ultimate outcome of the case. I must say that I do. Admittedly, there are juveniles out there that are not fully matured, but I'm not so sure that that really means they don't understand the nature and implications of their actions. And what we really are taking about is 17 year olds being executed, not 12, 13, etc. The death penalty should be used in such cases of juvenile murderers sparingly, I agree, but isn't that exactly what happens now. As Justice O'Connor writes,
Granting the premise "that adolescents are generally less blameworthy than adults who commit similar crimes," I wrote, it does not necessarily follow that all [juveniles]...are incapable of the moral culpability that would justify the imposition of capital punishment.
That only three states have executed a juvenile in the past decade shows this, but the majority twists this to show an "emerging national consensus" (isn't it interesting that the twelve jurors in this case who recommended the death penalty were part of the apparent "anti-consensus?"). Isn't the facts that it is used so sparingly just as much evidence that establishes the reasoned judgment of prosecutors: only when faced with heinous, unspeakable crimes and a mature offender, will the prosecutors move for the death penalty. Admittedly, I am far away from this crime and know only the facts from the opinion, but Simmons himself might not have been the best vehicle for deciding that states and prosecutors can no longer use their reasoned judgment, but instead that minors are categorically excluded from the possibility of the death penalty (Should I also mention that in preparing his "plan", Simmons convinced an accomplice they could get away with it "because they were minors"). This decision maybe should not, then, present a lot of comfort to the Shirley Crook's of the country.

I realize this has been a somewhat normative analysis, and in my later points, I hope to take up more specific legal arguments about the manipulation of precedent, the overruling of himself by Justice Kennedy, the use of secondary materials and studies to lead to the conclusion that a national consensus exists, the apparent criteria for national consensus', why the Eighth Amendment is apparently "different" from other constitutional protections, and the use of subjective moralism in judging. Like I said, I have a lot to say about this opinion.

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