- The Washington Times - Tuesday, October 29, 2002

The death penalty hovers over the Washington area.

The arrestees in the sniper cases, John Allen Muhammad, 41, and John Lee Malvo, 17, and accused September 11 conspirator, Zacariah Moussaoui, are strong candidates for executions. The crimes charged are moral abominations. The alleged perpetrators acted with free will, not under duress or delusion. Few if any voices are clamoring against death sentences if convictions are obtained.

Virginia and Alabama, two jurisdictions involved in the terrorist villainies, authorize capital punishment for juveniles.

Against this popular headwind, four justices of the U.S. Supreme Court last week in In re Stanford upbraided the five-member majority for refusing to condemn executions for morally odious crimes committed by persons less than 18 as cruel and unusual in violation of the Eighth Amendment. And last month, federal district Judge William K. Sessions III held the Federal Death Penalty Act of 1994 unconstitutional in United States vs. Fell, capping his opnion with the clarion peroration, "Capital punishment is under siege."

But who commissioned judges to defeat popular democratic choice over the death penalty? Not the Constitution.

The reasons elaborated by Justice John Paul Stevens for the minority in Stanford embarrass the cerebral faculties. He sermonized that 28 states expressly forbid capital punishment for gruesome crimes committed by persons 17 or younger. That proves that no community consensus has crystallized over the question since 22 states permit that option. Indeed, the nationwide trend over the past decade has been toward lowering the age for treating juveniles as adults for serious crimes. Justice Stevens further noted that four states since 1989 have joined the anti-death penalty ranks concerning minors. All the more reason for the Supreme Court to stay its hand.

Popular democracy is working flawlessly. No artificial barriers obstruct free and fair public debate and legislative votes on the death penalty for juveniles. The issue is no political stepchild. Parents are surrogate voices for the welfare of adolescents; mothers and fathers understand the impetuosity and frowardness of youth; their paternal instincts incline them against capital punishment. Only the strongest tugs of moral repugnance can overcome that natural reluctance.

Flaunting a supreme obtuseness, Justice Stevens owlishly urged as favoring a constitutional override of the democratic process the commendable attention legislatures are devoting to capital punishment for minors despite the tiny numbers affected: "[T]he fact that the legislatures are paying attention to this issue is remarkable. Juvenile offenders make up only 2 percent of the total population of death row and about that same percentage of the executions that are carried out. As a result of such small numbers, one might expect that this issue would draw little public attention and even less interest from the state legislatures. But the legislatures have acted, and those actions are uniformly against the execution of those who were under 18 when they committed their offense."

All this sounds like a panegyric for legislatures and popular democracy. Justice Stevens has marshaled unanswerable arguments against any Supreme Court interpretation of the Eighth Amendment banning the death penalty for juveniles no matter how heinous the murders and how morally squalid the perpetrator: namely, that legislatures, as models of enlightened self-government, are actively addressing the issue with responsibility, care and maturity. But thejustice keenly relishes coups de theatre or surprise O Henry endings.

Accordingly, in the penultimate paragraph of his opinion, his worship flips from democracy to Platonic Guardians (like himself) deputed to coerce the unenlightened to morally correct views if argument proves unpersuasive.

Thus, as Robespierre insisted that if the French would not be virtuous, then he would cram virtue down their throats, so Justice Stevens concluded that since legislatures and citizens had resisted his moral scoldings about executing youthful offenders, then he would compel submission by a Jesuitical interpretation of the Eighth Amendment's prohibition of cruel and unusual punishments. He self-righteously amplified: "All of this leads me to conclude that offenses committed by juveniles under the age of 18 do not merit the death penalty. The practice of executing such offenders is a relic of the past and is inconsistent with evolving standards of decency in a civilized society. We should put an end to this shameful practice."

But those are views that legislative bodies should consider, not self-evident truths to be imposed by judicial fiat. Free will and moral sensibilities do not lie dormant until age 18. Supreme Court majorities, including Justice Stevens, have celebrated a constitutional right of underage mature minors to abortions without parental consent or consultation. A fixed emotional or psychological dividing line between adolescence and adulthood is chimerical. As a general rule, age and moral accountability go hand in hand. That is why the Constitution requires juries to consider youth as a mitigating factor in choosing between life or death. But there are exceptions to the rule. And the tiny number of death row inmates whose despicable crimes were perpetrated as juveniles shows that juries find exceptions with utmost care.

Justice Stevens substantially faults society for youth crime and questions the free will of adolescents. He enlists the scribblings of a Twentieth Century Fund Task Force on Sentencing Policy Toward Young Offenders: "Youth crime … is not exclusively the offender's fault; offenses by the young represent a failure of family, school, and the social system, which share responsibility for the development of America's youth."

But neither Justice Stevens nor sociological gurus know any more about free will than anyone else. What gives them authority to determine for the nation the moral culpability that should attach to hardened juvenile criminals?

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