Roper v. Simmons -- The Juvenile Death Penalty Goes the Way of the Condor

So in Roper v. Simmons, the Supreme Court found, in a 5-4 vote, that the execution of convicted murderers under the age of 18 at the time of their crimes violates the Eighth Amendment's prohibition against "cruel and unusual punishment." Since I only intend to address certain aspects of the Court's competing analyses, I won't go into much detail about the case itself. For the long version, read the entire opinion, found here. For a passingly brief synopsis, try this site. (If you are largely unfamiliar with this case, the latter link should give you the necessary background to understand what follows, but also check out Law Dork for a collection of useful links.)

Dahlia Lithwick over at Slate provides a characteristically sharp and witty summation of what was at stake among the four opinions (including one rather gratuitous concurrence and two unsurprising dissents):

Everyone in this case is essentially agreed that the Eighth Amendment standard for what constitutes cruel and unusual punishment is, after a case called Trop v. Dulles, not fixed in time but must reflect evolving standards of what is decent or cruel or excessive. But Justice Kennedy's opinion today is dramatic in that he goes much further than necessary, to leapfrog over Stanford v. Kentucky, the 1989 case—authored by Scalia—finding that executing those who were 16 or 17 at the time of their crimes was constitutional. Kennedy relies not simply on the counting of noses—specifically, how many states ban juvenile executions and has there been a marked trend toward such bans across the national landscape. He goes much further, citing to social science data, common sense, and international trends and treaties, and ends up not simply distinguishing Roper from Stanford, but pitching that whole case like yesterday's meatloaf.

In sum, she contends, correctly I think, that as a practical matter the Court in Roper engaged in a battle over math -- specifically concerning the assessment of the sort of national consensus nobody can credibly dispute has come to govern Eighth Amendment inquiries.

Once again, as in Lawrence (finding a right to consensual homosexual sodomy) and Casey (preserving the right to abortion), to cite two prominent examples, Justice Kennedy plays the Associate Justice Voted Most Likely to Write His Opinion As Though It Ought To Be Engraved in Stone. As former Supreme Court clerk Edward Lazarus obliquely observed in his tell-all Closed Chambers, Justice Kennedy's positions are governed no more by ideology than by his evident desire to issue the Great Pronouncements of his tenure on the Court. (Indeed, the frequent foregrounding of Justice O'Connor as the decisive vote increasingly looks dubious as Kennedy is finding himself to the left of her with greater frequency in recent years.) So here he is again.

I agree with Dahlia (O Dahlia!) that Roper was above all a nose-counting exercise. How could I not when the majority's own characterization of the question so clearly invokes this question?

The beginning point is a review of objective indicia of consensus,as expressed in particular by the enactments of legislatures that have addressed the question.This data gives us essential instruction. We then must determine, in the exercise of our own independent judgment,whether the death penalty is a disproportionate punishment for juveniles.

I do, however, think that reflects an oversimplification of the forces at work in Kennedy's opinion. Equally important to the Court were disputes over the relevance of international law to our assessment of the sort of popular consensus that defines cruel and unusual punishment, and the recurrent concern (perhaps best exemplified in 8th Amendment cases, though also surely present in the ongoing debate over "substantive due process") over just how dynamic our Constitution is, an issue that animates this Court's schism, one imperfectly reflected in the Roper vote. (More typically, at least until the past couple of years, one would find Kennedy lining up with Rehnquist, Scalia, and Thomas, with O'Connor often casting the "deciding" vote; in this case, Kennedy lined up with the liberals and Kennedy dissented, albeit alone and without joining the Scalia dissent.) Also of significang concern to this Court is the question whether states providing for no death penalty whatsoever should be counted as part of a consensus against imposition of capital punishment on juveniles, a matter that has rearer its head in prior death penalty cases as recently as Atkins, in which the Court found unconstitutional the execution of the mentally retarded.

I should be clear that I find the death penalty odious in a putatively civilized nation. I wouldn't have any government body spend a penny of my taxes on the killing of another human being, unless in service of the national defense or in related areas of international concern. The idea that at such an august time for human rights (and it is, notwithstanding myriad ongoing abuses) the country that would hold itself out as a beacon of freedom and urbanity to the world at large still buys into such primitive principles of retribution (see also the new trend towards permitting victim impact statements to be heard by a jury, as though such statements have any legal relevance whatsoever) is repugnant. Accordingly, as an individual and citizen I am pleased with the result, and furthermore pleased with the sweep of Justice Kennedy's language. That said, my only interest this afternoon is to discuss the legal analyses presented by the Court, and indeed only a small fraction of them. I should be able to do this with the dispassion that my profession requires; I'm the first to admit when decisions lead to results I like are reasoned poorly.

Of crucial importance to this case are the Court's decisions, only one term apart, in Thompson v. Oklahoma (plurality opinion) (finding execution of a defendant aged 15 at the time of the crime unconstitutional) and Stanford v. Kentucky (finding constitutional the execution of defendants older tha 15). In Thompson, Justice Kennedy noted in Roper,

the plurality . . . observed that “[t ]he conclusion that it would offend civilized standards of decency to execute a person who was less than 16 years old at the time of his or her offense is consistent with the views that have been expressed by respected professional organizations, by other nations that share our Anglo-American heritage,and by the leading members of the Western European community.”

* * * *

[T]he Thompson plurality stressed that “[t ]he reasons why juveniles are not trusted with the privileges and responsibilities of an adult also explain why their irresponsible conduct is not as morally reprehensible as that of an adult.”

And again in Roper, the Court noted that the standard ages for voting and driving and such tend to hover around 18. Similarly, the Court didn't note but should have, one is not subject to conscription until 18.

InStanford, however, the Court ruled 5-4 that such standards did not preclude execution of 16-18's. It's worth considering this for a moment. It would seem that Justice Scalia dislikes the idea of drawing any arbitrary lines whatsoever. The Court having drawn a line in Thompson, however, the Stanford minority did the next best thing to reversal: it narrowed the earlier case to its facts by saying, okay, 15 it is, but nothing more. It stops here. Still, any argument that lines shouldn't be drawn by a Justice who voted to implement or sustain such a line in a related case is suspect. In Scalia's Roper dissent, in a footnote, he appears to endorse (as his putative originalist commitment tends to require) the old commonlaw view that even a 7-year-old might be tried as a capital defendant, albeit subject to a rebuttable presumption of incapacity to form the intent necessary to permit conviction for first-degree murder.

Returning to the nose-counting approach, Kennedy in ends his legally necessary analysis with this summation

As in Atkins, the 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.”

This, he writes, is due to

[t]hree general differences between juveniles under 18 and adults[, which] demonstrate that juvenile offenders cannot with reliability be classified among the worst offenders. First, as any parent knows and as the scientific and sociological studies respondent and his amici cite tend to confirm,'[a] lack of maturity and an underdeveloped sense of responsibility are found in youth more often than in adults and are more understandable among the young.'

"The second area of difference is that juveniles are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure." "The third broad difference is that the character of a juvenile is not as well formed as that of an adult. The personality traits of juveniles are more transitory, less
fixed." These three combined take juveniles out of the "worst category of offenders," who the Court time and again has consistently identified as the only class of people to whom capital punishment may properly be applied.

In my opinion, and in Scalia's, Kennedy next moves into a very tendentious claim rejecting the idea that determinations of individual culpability are best left to the jury, including the degree to which youth should be viewed as a mitigating factor. Kennedy argues that

[t]he differences between juvenile and adult offenders are too marked and well understood to risk allowing a youthful person to receive the death penalty despite insufficient culpability. An unacceptable likelihood exists that the brutality or cold-blooded nature of any particular crime would overpower mitigating arguments based on youth as a matter of course,even where the juvenile offender ’s objective immaturity, vulnerability, and lack of true depravity should require a sentence less severe than death.

In the most effective passage of his dissent, which Orin Kerr finds broadly persuasive, Scalia writes:

The Court concludes . . . that juries cannot be trusted with the delicate task of weighing a defendant's youth along with the other mitigating and aggravating factors of his crime. This startling conclusion undermines the very foundations of our capital sentencing system, which entrusts juries with “mak[ing] the difficult and uniquely human judgments that defy codification and that ‘buil[d] discretion, equity, and flexibility into a legal system.’” The Court says, that juries will be unable to appreciate the significance of a defendant’s youth when faced with details of a brutal crime. This assertion is based on no evidence; to the contrary, the Court itself acknowledges that the execution of under-18 offenders is “infrequent” even in the States “without a formal prohibition on executing juveniles,” suggesting that juries take seriously their responsibility to weigh youth as a mitigating factor.

This particular argument has much to recommend it, especially in light of the Court's recent vindications of the crucial importance to our system of jury determinations of virtually all facts bearing on sentencing, as well as those bearing on guilt, as reflected in the line of cases running from Apprendi through Blakely and most recently Booker. Scalia here is rhetorically persuasive as well, when he notes that, if the brutal nature of a crime overwhelms a juror as to mitigation of age, why not as to other mitigation evidence, which may in fact be less effective. If a jury is incapable of recognizing youth in itself as a mitigating factor, why should we trust it to react differently to evidence of a 40-year-old murderer's childhood history of abuse, mental defects rising to neither legal insanity nor retardation, or other mitigating factors of the like. Indeed, I find this argument so abstractly convincing that, as a matter of constitutional law, I'm almost inclined to take Scalia's part, even as I more broadly object to the very idea of capital punishment.

But the majority doesn't stop there, where it probably should have. Instead, Kennedy's own penchant for overbroad rulings, ostensibly in the interest of overwhelming counterarguments with the sheer volume of his reasoning, going on to emphasize, somewhat gratuitously, that Sanford erred in failing to count no-death-penalty states in assessing the existence of a consensus. Needless to say, this is something Scalia disagrees with quite vehemently: "Consulting States that bar the death penalty concerning the necessity of making an exception to the penalty for offenders under 18 is rather like including old-order Amishmen in a consumer-preference poll on the electric car." Which is to say, if you are a full-fledged death penalty opponent, your view shouldn't count. Dahlia calls this a "semi-offensive analogy" and an "unintuitive" line of argument, and I have to agree.

Here we see how the way the question is framed dictates the result. The question, as framed by the majority, concerns whether executing juvenile murderers is cruel and unusual under the Eighth Amendment. Scalia, however, calls it an "exception" to the death penalty. Under his understanding, then, Scalia's analogy to the Amish has legs. But under the constitutional question properly at issue, it does not; for the consensus of the society at large as to the propriety of executing children under the Eighth Amendment requires considering the views of those states that find all capital punishment odious. To argue otherwise is to defy a syllogism so obvious it borders on tautology.

Next, Kennedy really steps in it -- or rather rubs Scalia's face in it. Trucking out his new obsession with gleaning general principles from international law and in the laws of other nations, Kennedy next embarks on a "non-binding" but awfully long-winded discussion of pertinent foreign and international law. For example, he notes that Article 37 of the United Nations Convention on the Rights of the Child, ratified by all but the United States and Somalia, bars execution of children under 18. "Iran, Pakistan, Saudi Arabia, Yemen, Nigeria, the Democratic Republic of Congo, and China. Since then each of these countries has either abolished capital punishment for juveniles or made public disavowal of the practice." Now without considering whether this is constitutionally proper, one has to concede that the list of nation's reads like a who's who of human rights abusers. Of course, there's nothing new here; Amnesty International has been saying this about our criminal justice system forever, and with more than a little legitimacy (I have in mind here the abohorrently high proportion of our citizenry behind bars at any given moment). But here's where Kennedy really goes off the deep end (or, debatably, takes advantage of what was an unsurprisingly strong coalition (given his defection to the more liberal faction of the Court)) -- cue weepy John Williams music:

Over time,from one generation to the next, the Constitution has come to earn the high respect and even, as Madison dared to hope, the veneration of the American people. The document sets forth, and rests upon, innovative principles original to the American experience, such as federalism; a proven balance in political mechanisms through separation of powers; specific guarantees for the accused in criminal cases; and broad provisions to secure individual freedom and preserve human dignity. These doctrines and guarantees are central to the American experience and remain essential to our present-day self-definition and national identity. Not the least of the reasons we honor the Constitution, then, is because we know it to be our own. 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 peoples simply underscores the centrality of those same rights within our own heritage of freedom.

Fair enough, as far as it goes, but it's way over the top, rivaling the Scalia-maligned "sweet mystery of life" passage from Kennedy's decision in Casey. It is, in my opinion, an unequaled exemplum of Kennedy's proclivity to state the law in terms so lofty they beg mockery. This is not how appellate courts, even courts of last resort, should speak, no matter how fundamental the question posed. I tend to agree with the underlying premise -- that the consensuses at issue in constitutional questions ought to acknowledge the moral impulses of humanity generally -- but this is all a bit too florid -- even for my taste.

Giddy with the tone of the majority opinion, Stevens and Ginsburg pile on in a separate concurrence, in which Stevens avers:

The evolving standards of decency that have driven our construction of this critically important part of the Bill of Rights foreclose any such reading of the [Eighth] Amendment. In the best tradition of the common law, the pace of that evolution is a matter for continuing debate; but that our understanding of the Constitution does change from time to time has been settled since John Marshall breathed life into its text. If great lawyers of his day—Alexander Hamilton, for example—were sitting with us today, I would expect them to join JUSTICE KENNEDY ’s opinion for the Court. In all events, I do so without hesitation.

And here Justice Stevens takes advantage of the opportunity to provide some completely gratuitous language for future litigants to roll out at some future date, a sort of covert tribute, perhaps, to the late Justice Brennan and his so-called (not by him) "living constitution" that bedevils the conservative judiciary and commentariat to no end. Or maybe this is just Justice Stevens reaffirming the baseline principle of judicial review; the evocation of John Marshall is a pretty blatant reference to Marbury v. Madison. Either way, I'm pretty sure it's not only unnecessary but rather pompous and odd. And generally I admire Justice Stevens tremendously.

O'Connor dissents but adds a sixth vote to the effect that we are not hidebound to the 1791 understanding of cruel and unusual punishment. She also provides a tepid sixth vote in support of the Court's reference to international law, but she hedges:

[W]e should not be surprised to find congruence between domestic and international values, especially where the international community has reached clear agreement—expressed in international law or in the domestic laws of individual countries—that a particular form of punishment is inconsistent with fundamental human rights. At least, the existence of an international consensus of this nature can serve to confirm the reasonableness of a consonant and genuine American consensus. The instant case presents no such domestic consensus, however, and the recent emergence of an otherwise global consensus does not alter that basic fact.

Thus she fatuously opines in so many words that when international law supports the Court, it should rely on it to augment its authority; when the Court disagrees with international law, however, it can and should ignore it. O'Connor's watered down version thus is meaningless; meanwhile, for other reasons Scalia's argument against all reference to foreign law falls flat.

Scalia rejects our reliance on foreign law by reference to those areas in which we don't defer to foreign law: the Fifth Amendment's double jeopardy proscription, the Fourth Amendment's exclusionary rule, the Fourteenth Amendment's right abortion up to viability, all matters few other countries recognize to the degree the United States does. There's a gaping flaw in this analysis, however: those matters enumerated by Scalia are all ways in which the United States Constitution protects to an internationally uncommon extent individuals' interests in liberty and freedom from arbitrary government intrusion. This is categorically different than what punishments are recognized by foreign governments and international treaties as inhumane. We diverge from foreign law where it fails to uphold the dignity of the person to the extent we think both appropriate and required by our law; the Eighth Amendment, fundamentally, is about human dignity. Of course we won't follow other nations in reducing the degree of liberty and personal dignity enshrined in our Constitution; this has absolutely no bearing, however, on the persuasive effect of foreign law where it appears to protect individual dignity to an extent greater than our law does. We ought to be embarrassed by this, and thankfully five Justices were in this case (see also Lawrence and Atkins).

Scalia also argues: "That “almost every State prohibits those under 18 years of age from voting, serving on juries, or marrying without parental consent,” is patently irrelevant . . . ." This follows directly, however, his suggestion that if the law finds women under 18 competent in certain circumstances to choose to abort a pregnancy, then 18-year-olds surely are capable of recognizing the moral import of the decision to take a life: "Serving on a jury or entering into marriage also involve decisions far more sophisticated than the simple decision not to take another’s life."

This isn't the only way Scalia tries, rather dubiously, to bootstrap an analogy to abortion into this discussion, a matter taken up by Bitch. Ph.D. far more effectively than I might hope to in a relatively brief post I strongly recommend.

Dahlia concludes: "Scalia's probably right that Kennedy's ability to count as high as five [the number of states that have changed their view of juvenile executions since Stanford] should not authorize the judiciary to irrevocably set national law. But he can't quite bring himself to admit that he's just mad that the court has again refused to use his math."

And so it has, as it did in Thompson and Lawrence. Scalia kids himself that he wouldn't issue moral pronouncements from the bench. As noted in Lawrence and the consequent commentary, in most respects that's what laws, and by extension the courts charged with interpreting them, must do. Rather, he objects at some deep level to what he sees as the permissive morality presently being issued. Where he prevails, you don't nearly so often hearing him saying anything to the effect that we won't reach this moral question as such. And if that were really what all of this were about, he'd say that every time he had the chance, as he has in dissent.

It's a shame that in his senescence Scalia's undisputably magnificent intellect has become increasingly obscured by his snarky derision. More and more, there is no evidence that he is interested in participating in the measured debate we ought to expect from the Court. And what perhaps he doesn't realize is that it's his increasingly offensive tone that's prompting those justices that disagree with him to grab as much territory as they can when they have the votes to do so in some of the most influenctial cases of our generation. Measured debate leads to measured decisions; pissing contests more clearly separate the victors from the defeated, and to the victors (when that's how they perceive themselves) go the spoils.

As I've said, I don't object to the result in this case, but the whole thing is unseemly to me. Kennedy's overestimation of his role in legal history, Stevens' grandstanding reinvention of the wheel, O'Connor's results-oriented attitude toward international law, and Scalia's partisan hackery, which obscures the occasional sagacity of his analysis with petty high school debate team sanctimony -- these things cast an unfortunate pall over the Roper decision, as so many before it and so many to come. One can only hope that Bush's desire to fill the next available seat with a Scalia clone is foiled by the Demorat opposition.

UPDAATE: Orin Kerr discusses the import of two more newly released cases vis-a-vis the jumbled alliances of the Court, noting two decisions that might be thought liberal, one in a standard liberal 4 + O'Connor arrangement, and another in a L4 + Kennedy arrangement, both decided on eight-man votes and thus suggesting voting patterns impervious to Bush's selection of an arch conservative to replace Rehnquist, assuming that happens following this term. Of course, how long Stevens, Ginsburg, and the other older justices will last is another matter entirely.