- The Washington Times - Monday, February 9, 2004

Another rank judicial usurpation impends that will prohibit the death penalty for gruesome homicides perpetrated by unrepentant 17-year-olds, like sniper Lee Malvo. Associate Supreme Court Justice Sandra Day O’Connor, whose votes and opinions bespeak political compromise and elite orthodoxies, will probably cast the deciding vote in State ex rel. Simmons vs. Roper to ban the practice as unconstitutionally cruel and unusual. There may be better examples of idiosyncratic policy views masquerading as law, but if there are, they do not readily come to mind.

In Thompson vs. Oklahoma (1988), the court held that to execute persons who were 15 years of age or younger at the time of their homicidal abominations would affront the Eight Amendment’s prohibition of cruel and unusual punishments. The following year in Stanford vs. Kentucky (1989), however, the court denied that capital punishment for youths 16- or 17-years-old at the time of their vile crimes offended the amendment. In Adkins vs. Virginia (2002), the nine justices overruled a 1989 precedent to hold unconstitutional application of the death penalty to the mentally retarded.

Both Thompson and Adkins employed criteria for spotting a cruel and unusual punishment that more befits missionary work than constitutional interpretation. The court insisted that “evolving standards of decency that mark the progress of a maturing society” are the Eighth Amendment’s North Star.

Moreover, the constitutional standards acquire specific meaning as “public opinion becomes enlightened by humane justice.”

To determine the current decency consensus, the actions of legislatures and juries, the views of de rigueur national and international organizations, and the squeamishness of the justices themselves to the death penalty are controlling. The monumental inexactness of these criteria coupled with their divorce from the Eight Amendment make the court’s death penalty edicts tantamount to morally exhilarating exercises in open-ended policymaking.

The pending Simmons case is emblematic. Under review is a 4-3 decision of the Missouri Supreme Court holding unconstitutional capital punishment for loathsome murders committed at age 17. The majority, speaking through Judge Laura Denvir Stith, found that national morals had climbed upward on Jacob’s ladder since the 1989 Stanford precedent. That epiphany, according to Judge Stith, was discernible from stars in the national and international constellations of enlightened opinion.

Five states had braved “law and order” sentiments ascendant after Stanford in banning the execution of juveniles irrespective of the cruelty of their homicidal crimes and the absence of any mitigating circumstance. At present, sixteen states require a minimum age of 18 for death penalty eligibility. Further, 12 States and the District of Columbia prohibit the death penalty for any offense. Thus, 28 states prohibit juvenile executions, and 22 do not.

That relatively even division would discredit a national consensus but for the fuzzy math celebrated by the United States Supreme Court. A judicial thumb was added to the 28 because no state since 1989 had lowered the death penalty minimum to 17, two states that reinstituted capital punishment excluded juvenile offenders, and, bills had been dropped in many legislatures that would increase the minimum eligibility age to 17 or 18.

Judge Stith failed to consider, however, that a resurgence of juvenile killing sprees reminiscent of the Great Society era could reverse that legislative trend if the courts desisted from banning the death penalty for juvenile offenders.

Juries are naturally reluctant to sentence juveniles to death because youth is universally recognized as a mitigating factor. Accordingly, only 6 of the 22 states that permit capital punishment for juveniles have implemented such executions since 1989, and only three jurisdictions since 1993. During the past three decades, only 22 juvenile offenders have been executed, compared with a total of 366 since 1642.

Jury fastidiousness in executing juvenile killers shows laudable lenity inspiring confidence in the fairness of the sentencing process. But Judge Stith, echoing the obtuseness of the Supreme Court, reasoned that the greater the jury responsibility in capital sentencing, the greater the evidence that juries should be completely denied a death penalty option under the Eighth Amendment in sentencing juveniles.

Organizations unschooled in the United States Constitution and sporting notorious liberal biases against the death penalty were next consulted. Included were such novices as the American Psychiatric Association, the American Academy of Child and Adolescent Psychiatry, American Friends Service Committee, Mormons for Equality and Social Justice, The Rabbinical Assembly and the United States Catholic Conference.

Judge Stith also weighed opposition to the death penalty voiced in the United Nations Convention on the Rights of the Child and in sister international covenants.

Retribution chiefly explains death for hideous crimes of homicide of the type perpetrated by Lee Malvo. Judge Stith nonsensically maintained retribution could never justify execution for a juvenile offense because as a general rule youths are less mature and intelligent than adults. She neglected youth exceptions to the rule, where the circumstances of the crime and character of the criminal would justify the death penalty for retribution.

Law enforcement will not be crippled by the Supreme Court’s forthcoming decision in Simmons. The death penalty is not the centerpiece of deterrence. But constitutional law will be dishonored by such a flagrant arrogation of legislative power.

Bruce Fein is a founding partner of Fein & Fein.

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