High Court Ends Death Penalty for Youths (AP)
The Supreme Court ruled Tuesday that the Constitution forbids the execution of killers who were under 18 when they committed their crimes, ending a practice used in 19 states. The 5-4 decision throws out the death sentences of about 70 juvenile murderers and bars states from seeking to execute minors for future crimes. The executions, the court said, were unconstitutionally cruel.
It was the second major defeat at the high court in three years for supporters of the death penalty. Justices in 2002 banned the execution of the mentally retarded, also citing the Constitution’s Eighth Amendment ban on cruel and unusual punishments. The court had already outlawed executions for those who were 15 and younger when they committed their crimes. Tuesday’s ruling prevents states from making 16- and 17-year-olds eligible for execution.
Justice Anthony Kennedy, writing for the majority, noted that most states don’t allow the execution of juvenile killers and those that do use the penalty infrequently. The trend, he noted, was to abolish the practice. “Our society views juveniles … as categorically less culpable than the average criminal,” Kennedy wrote.
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Chief Justice William H. Rehnquist and Justices Antonin Scalia and Clarence Thomas, as expected, voted to uphold the executions. They were joined by Justice Sandra Day O’Connor.
Currently, 19 states allow executions for people under age 18: Alabama, Arizona, Arkansas, Delaware, Florida, Georgia, Idaho, Kentucky, Louisiana, Mississippi, Nevada, New Hampshire, North Carolina, Oklahoma, Pennsylvania, South Carolina, Utah, Texas and Virginia.
In a dissent, Scalia decried the decision, arguing that there has been no clear trend of declining juvenile executions to justify a growing consensus against the practice. “The court says in so many words that what our people’s laws say about the issue does not, in the last analysis, matter: ‘In the end our own judgment will be brought to bear on the question of the acceptability of the death penalty,’ he wrote in a 24-page dissent. “The court thus proclaims itself sole arbiter of our nation’s moral standards,” Scalia wrote.
Scalia’s right. I’m not a big fan of capital punishment for minors but find it incomprehensible that it could suddenly be unconstitutional. The 8th Amendment was ratified in 1791. The fact that 19 states still allowed youth executions until this morning belies the argument that the citizenry considers the practice cruel.
Update (1348): Steve Bainbridge and Steven Taylor have more analysis.
For those on the Left critical of my strict constructionist interpretation, see my post on yesterday’s ruling in the Padilla case. There are some strong advantages to having judges interpret the Constitution as written.
Update (3-2): Matt Yglesias agrees, observing,
The “evolving consensus” business is weird and curiously circular. It seems extraordinarily inconsistent with the general principles of American federalism to take the fact that most states don’t do something as evidence that a minority of states should be forbidden from doing it.
Quite right.
Tony Blankley adds, “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.”
