Wednesday, March 02, 2005


Roper v. Simmons

Yesterday the Supreme Court, in a 5-4 vote, declared that the death penalty is unconstitutional as applied to any perpetrator of any crime, provided the criminal was not yet 18 when the crime was committed. Without getting into the standard “death penalty: for or against” argument, and without arguing about whether one “likes” or “agrees with” the outcome of this case, it represents another in a long line of really bad decisions. It’s a bad decision, not because of the outcome, but because it’s another example of the Court deciding the outcome, and then hunting for a way to justify arriving at that outcome.

Implicit in the decision are these remarkable propositions: 1) a definitive consensus can be established by less than a majority; 2) what the Constitution “means” can be determined by majority rule, or a “consensus”; 3) the Constitution says what a majority of justices subjectively think it should say. I’m not making this up, by the way. If you go read the opinion, the majority actually says these things. And it represents the disturbing trend, begun in earnest after WW II, of the courts of this country acting as an unelected superlegislature in order to create new law.

First, let me point out that, as a matter of construing whether the death penalty is “cruel and unusual punishment”, a purely chronological rule makes absolutely no sense. If a 17 year old bludgeons his parents to death at 5 minutes to midnight the night before his birthday, capital punishment would be “cruel and unusual punishment”. But if he waits until after the cake and ice cream, opens his presents at 1:00 the following afternoon, then bludgeons his parents to death, capital punishment is not “cruel and unusual”. WOW! What a difference a half a day makes!

You should be able to find the text of the opinion on the public pages of
FINDLAW. Here are the facts, as set forth by the Court:

At the age of 17, when he was still a junior in high school, Christopher Simmons, the respondent here, committed murder. About nine months later, after he had turned 18, he was tried and sentenced to death. 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, discussing it for the most part with two friends, Charles Benjamin and John Tessmer, then aged 15 and 16 respectively. 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 "get away with it" because they were minors.

The three met at about 2 a.m. on the night of the murder, but Tessmer left before the other two set out. (The State later charged Tessmer with conspiracy, but dropped the charge in exchange for his testimony against Simmons.) Simmons and Benjamin entered the home of the victim, Shirley Crook, after reaching through an open window and unlocking the back door. Simmons turned on a hallway light. Awakened, Mrs. Crook called out, "Who's there?" In response Simmons entered Mrs. Crook's bedroom, where he recognized her from a previous car accident involving them both. Simmons later admitted this confirmed his resolve to murder her.

Using duct tape to cover her eyes and mouth and bind her hands, the two perpetrators put Mrs. Crook in her minivan and drove to a state park. They reinforced the bindings, covered her head with a towel, and walked her to a railroad trestle spanning the Meramec River. There they tied her hands and feet together with electrical wire, wrapped her whole face in duct tape and threw her from the bridge, drowning her in the waters below.

By the afternoon of September 9, Steven Crook had returned home from an overnight trip, found his bedroom in disarray, and reported his wife missing. On the same afternoon fishermen recovered the victim's body from the river. Simmons, meanwhile, was bragging about the killing, telling friends he had killed a woman "because the bitch seen my face."

The next day, after receiving information of Simmons' involvement, police arrested him at his high school and took him to the police station in Fenton, Missouri. They read him his Miranda rights. Simmons waived his right to an attorney and agreed to answer questions. After less than two hours of interrogation, Simmons confessed to the murder and agreed to perform a videotaped reenactment at the crime scene.

Here are excerpts from the two dissenting opinions:

Justice O'Connor, dissenting.

The Court's decision today establishes a categorical rule forbidding the execution of any offender for any crime committed before his 18th birthday, no matter how deliberate, wanton, or cruel the offense. Neither the objective evidence of contemporary societal values, nor the Court's moral proportionality analysis, nor the two in tandem suffice to justify this ruling.

Although the Court finds support for its decision in the fact that a majority of the States now disallow capital punishment of 17-year-old offenders, it refrains from asserting that its holding is compelled by a genuine national consensus. Indeed, the evidence before us fails to demonstrate conclusively that any such consensus has emerged in the brief period since we upheld the constitutionality of this practice in Stanford v. Kentucky, 492 U. S. 361 (1989).

Instead, the rule decreed by the Court rests, ultimately, on its independent moral judgment that death is a disproportionately severe punishment for any 17-year-old offender. I do not subscribe to this judgment. Adolescents as a class are undoubtedly less mature, and therefore less culpable for their misconduct, than adults. But the Court has adduced no evidence impeaching the seemingly reasonable conclusion reached by many state legislatures: that at least some 17-year-old murderers are sufficiently mature to deserve the death penalty in an appropriate case. Nor has it been shown that capital sentencing juries are incapable of accurately assessing a youthful defendant's maturity or of giving due weight to the mitigating characteristics associated with youth.

On this record--and especially in light of the fact that so little has changed since our recent decision in Stanford--I would not substitute our judgment about the moral propriety of capital punishment for 17-year-old murderers for the judgments of the Nation's legislatures. Rather, I would demand a clearer showing that our society truly has set its face against this practice before reading the Eighth Amendment categorically to forbid it.

Justice O’Connor apparently buys the “majority rule” argument, but doesn’t see any “consensus”, which the majority arrives at by combining states prohibiting capital punishment below the age of 17 with states which prohibit capital punishment completely. And her real objection is to the majority simply deciding that the meaning of the Constitution has changed because they think it should.

Justice Scalia, however, whose dissent is joined by Chief Justice Rehnquist and Justice Thomas, isn’t buying any of it, and has some of the same objections I do:

Justice Scalia, with whom The Chief Justice and Justice Thomas join, dissenting.

In urging approval of a constitution that gave life-tenured judges the power to nullify laws enacted by the people's representatives, Alexander Hamilton assured the citizens of New York that there was little risk in this, since "[t]he judiciary ... ha[s] neither FORCE nor WILL but merely judgment." The Federalist No. 78, p. 465 (C. Rossiter ed. 1961). But Hamilton had in mind a traditional judiciary, "bound down by strict rules and precedents which serve to define and point out their duty in every particular case that comes before them." Id., at 471. Bound down, indeed. What a mockery today's opinion makes of Hamilton's expectation, announcing the Court's conclusion that the meaning of our Constitution has changed over the past 15 years--not, mind you, that this Court's decision 15 years ago was wrong, but that the Constitution has changed. The Court reaches this implausible result by purporting to advert, not to the original meaning of the Eighth Amendment, but to "the evolving standards of decency," ante, at 6 (internal quotation marks omitted), of our national society. It then finds, on the flimsiest of grounds, that a national consensus which could not be perceived in our people's laws barely 15 years ago now solidly exists. Worse still, the Court says in so many words that what our people's laws say about the issue does not, in the last analysis, matter: "[I]n the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment." Ante, at 9 (internal quotation marks omitted). The Court thus proclaims itself sole arbiter of our Nation's moral standards--and in the course of discharging that awesome responsibility purports to take guidance from the views of foreign courts and legislatures. Because I do not believe that the meaning of our Eighth Amendment, any more than the meaning of other provisions of our Constitution, should be determined by the subjective views of five Members of this Court and like-minded foreigners, I dissent.

In this case, I would have to come down pretty squarely with Scalia, Rehnquist and Thomas. And I think O’Connor gets the right result but for the wrong reasons. For me, Scalia hits the nail right on the head:

Because I do not believe that the meaning of our Eighth Amendment, any more than the meaning of other provisions of our Constitution, should be determined by the subjective views of five Members of this Court and like-minded foreigners, I dissent.

This reminds me of another thing, the Supreme Court once declared that executing a mentally challenged person is unconstitutional. Even if its only mild retardation. An interesting thing is that the Constitution is anaylyzed always according to a party's viewpoints. If a Republican or Democratic President chooses a R/D judge who would be approved by an R/D Senate, then I would say it is fair to assume that Party viewpoints would influence the justices.
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