Roper v. Simmons--Juvenile Death Penalty Unconstitutional

The Court held today in Roper v. Simmons that the death penalty for juveniles violates the Eighth Amendment. I actually don't mind the outcome, agree that minors should not get the death penalty. But the way Justice Kennedy's opinion gets there is, I think, ridiculous. In the end, all Justice Kennedy is relying on is the actions of 5 states of invalidating the juvenile death penalty to justify this shift in U.S. values.

Kennedy begins:

The prohibition against "cruel and unusual punishments," like other expansive language in the Constitution, must be interpreted according to its text, by considering history, tradition, and precedent, and with due regard for its purpose and function in the constitutional design.

To justify the overturning of Stanford v. Kentucky, Kennedy notes that "Five States that allowed the juvenile death penalty at the time of Stanford have abandoned it in the intervening 15 years-four through legislative enactments and one through judicial decision." So, four statues and a judicial decision. Scalia notes in dissent that the Court "claims halfheartedly that a national consensus has emerged since our decision in Stanford, because 18 States-or 47% of States that permit capital punishment-now have legislation prohibiting the execution of offenders under 18, and because all of four States have adopted such legislation since Stanford. . . . Words have no meaning if the views of less than 50% of death penalty States can constitute a national consensus."

Kennedy concludes:

[T]he objective indicia of consensus in this case-the rejection of the juvenile death penalty in the majority of States; the infrequency of its use even where it remains on the books; and the consistency in the trend toward abolition of the practice-provide sufficient evidence that today our society views juveniles, in the words Atkins used respecting the mentally retarded, as "categorically less culpable than the average criminal."

I wonder how he gets from "categorically less culpable" to "cruel and unusual" . . . or have we thrown out the text altogether? Justice Stevens wrote a concurrence to note only that if we were to use the original meaning of the constitution in this case, that it would permit the execution of children under 7. I wonder what Stevens means here. Is he saying that if we were all originalists, that we would have some 6 year olds being executed? Is he saying that it is too hard to get a statute or even a constitutional amendment passed that would bar capital punishment for 6 year olds, such that the court needs to step in and ratchet up the protection? Obviously executing a 6 year old would be cruel and unusual, but I think an amendment to bar capital punishment, ratchet up the constitutional protection for such a situation would take all of 5 minutes. To say that since the constitutional theoretically would not bar it is very different from saying that there is any real risk of such a thing happening.

But all of this is not new. Obviously we don't have a court full of originalists.

What is fairly new is the section on international sources. Justice Scalia agrees: "Though the views of our own citizens are essentially irrelevant to the Court's decision today, the views of other countries and the so-called international community take center stage." Justice Kennedy writes:

Our determination that the death penalty is disproportionate punishment for offenders under 18 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. This reality does not become controlling, for the task of interpreting the Eighth Amendment remains our responsibility. Yet at least from the time of the Court's decision in Trop, 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 punishments."

I agree with Justice Scalia that "the basic premise of the Court's argument-that American law should conform to the laws of the rest of the world-ought to be rejected out of hand." Remember his debate with Breyer (RealPlayer)? Scalia notes that the use of foreign sources pops up only when the Court wants extra support for its idea. Such discussion is completely absent in the discussion of the Miranda exclusionary rule, the establishment clause, and abortion.

Julian Ku notes that a number of the treaties that Kennedy cites were not even signed by the U.S. Whether the U.S. has signed those treaties has no bearing on Scalia's categorical objection to use of foreign sources, but it highlights the danger that Kennedy enters here. He is using foreign sources, presumably to interpret the constitutional provision in light of U.S. values, which are enough afield of U.S. values that we were unwilling to sign the treaty.