Black robes and betrayal

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The U.S. Supreme Court has struck again -- this time overturning by a 5-4 decision, all statutes that apply the death sentence to 16- and 17-year-old murderers.

As a former prosecutor, I am convinced that from time to time juries find before them 16- or 17-year-old defendants who understand full well the vicious nature of their murders, and deserve -- after receiving the full panoply of due process -- to be fried, gassed, hanged, shot, injected or otherwise sent promptly to Hell.

Even if you are of a sympathetic nature and believe that the little 17-year-old darlings deserve to be rehabilitated, you might still find this Supreme Court opinion stomach turning for its sheer disdain of logic, public attitudes and American law.

But first: The crime, as described yesterday by Justice Anthony Kennedy in Roper v. Simmons, writing for the majority: "At the age of 17, when he was still a junior in high school, Christopher Simmons ... committed murder ... There is little doubt that Simmons was the instigator of the crime. Before its commission Simmons said he wanted to murder someone. In chilling, callous terms he talked about his plan with his friends ... Simmons proposed to commit burglary and murder by breaking and entering, tying up a victim, and throwing the victim off a bridge. Simmons assured his friends they could 'getaway with it' because they were minors." A few hours later he proceeded to do just that, breaking into a home, covering the victim's head in a towel, wrapping her up in duct tape and tying her hands and legs together with electrical wire. Then he drove her to a bridge and threw her off into the water, where helpless, she drowned.

The question before the Supreme Court was whether this presented a case of cruel and unusual punishment in violation of the 8th Amendment to our Constitution. No, the court was not concerned with whether being assaulted in your home, wrapped in a towel, duct tape and electrical wire and thrown off a bridge was cruel and unusual punishment. That's OK. The court is only concerned with whether it was cruel and unusual to execute the strapping 17-year-old murderer who did it.

The gist of the majority's analysis is that whether the crime is constitutionally "unusual" depends on whether "evolving standards of decency" have reached the point in our history when such punishment has been clearly rejected by society.

It happens that only 15 years ago the Supreme Court found that the kind of statute in question was constitutional. But, rather than overturning that case, the court yesterday found that in the last 15 years a national consensus against such punishment had emerged.

The majority based that conclusion on the fact that "18 states -- or 47 percent of states that permit capital punishment -- now have legislation prohibiting the execution of offenders under 18," and four of those states have adopted such legislation since the Supreme Court's ruling of 15 years ago.

As Justice Antonin Scalia fumed in his dissent: "Words have no meaning if the views of less than 50 percent of death penalty States can constitute a national consensus. Our previous cases have required overwhelming opposition to a challenged practice, generally over a long period of time." In this case, a majority of relevant states approve the practice.

Recognizing that they were arguing a rather weak set of facts regarding a national consensus, the majority supplemented its argument with the self-aggrandizing assertion that "In the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the 8th Amendment." Outrageously, the court asserts such power because, as Justice Scalia characterized, "juries cannot be trusted with the delicate task of weighing a defendant's youth along with other mitigating factors." This assertion, of course, undermines "the very foundations of our capital sentencing system."

The majority, still sensing its arguments to be rather feeble, went on to try to buttress their case further by citing a menagerie of international treaties and foreign laws, claiming: "The opinion of the world community, while not controlling our outcome, does provide respected and significant confirmation for our own conclusions."

In support thereof they cited, inter alia, the U.N. Convention on the Rights of the Child, a treaty before signing which, the U.S. government expressly reserved "the right ... to impose capital punishment on any person (other than a pregnant woman)." To which Justice Scalia observed in his dissent: "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, [the majority's] position."

After Justice Kennedy used five pages of his logically incoherent majority opinion to cite a hodge podge of foreign laws, he limply and defensively concluded his opinion: "It does not lessen our fidelity to the Constitution or our pride in its origins to acknowledge that the express affirmation of certain fundamental rights by other nations and people simply underscores the centrality of those same rights within our own heritage of freedom." When a Supreme Court justice feels it necessary to write as the closing words of his opinion that he still holds fidelity to the Constitution, it is more than reasonable to assume he knows he has just betrayed that sacred document. But at least he has vouchsafed his popularity at liberal cocktail parties for another year.