Supreme Court: No Death Penalty for Juveniles - Page 2

**Roguish Lawyer** · 03-02-2005, 04:01

http://www.opinionjournal.com/editor...l?id=110006361

REVIEW & OUTLOOK

The Blue State Court
The Justices continue their liberal social activism.

Wednesday, March 2, 2005 12:01 a.m. EST

Justice Anthony Kennedy has many attributes, but judicial modesty isn't one of them. His latest legislative diktat in the guise of a legal decision--issued yesterday in Roper v. Simmons--overturns 19 state laws on behalf of a "national consensus" that he alone seems to have defined.

Yesterday's ruling concerned a death penalty case, which isn't something we usually write about. But what makes Roper notable, and worthy of wider debate, is the way it symbolizes the current Supreme Court's burst of liberal social activism. From gay rights to racial preferences and now to the death penalty, a narrow majority of Justices has been imposing its own blue-state cultural mores on the rest of the country. We suspect it is also inviting a political backlash.

No doubt most Americans will concede that the death penalty for 16- and 17-year-olds is a difficult moral question. That is why different U.S. states have different laws on the matter, and we'd probably oppose such executions if we sat in a legislature. But rather than defer to the will of voters as expressed through state legislatures and at least two ballot initiatives (in Arizona and Florida), Roper imposes the view of five justices that the execution of 16- and 17-year-olds is both wrong and unconstitutional. As Justice Antonin Scalia writes in a dissent that is even more pungent than his usual offerings, "The court thus proclaims itself sole arbiter of our nation's moral standards."

Justice Kennedy rests his decision on his assertion that American society has reached a "national consensus" against capital punishment for juveniles, and that laws allowing it contravene modern "standards of decency." His evidence for this "consensus" is that of the 38 states that permit capital punishment, 18 have laws prohibiting the execution of murderers under the age of 18. As we do the math, that's a minority of 47% of those states. The dozen states that have no death penalty offer no views about special immunity for juveniles--and all 12 permit 16- and 17-year-olds to be treated as adults when charged with non-capital offenses.

This idea of invoking state laws to define a "consensus" also runs up against any number of notable Supreme Court precedents, including Roe v. Wade. When Roe was decided in 1973, all 50 states had some prohibition against abortion on the books. But never mind.

Even weaker is the Roper majority's selective reliance on scientific and sociological "evidence"--the kind that legislatures (and juries) are used to weighing. The American Psychological Association claims in this case that killers under the age of 18 are incapable of making appropriate moral judgments. But this is the same organization that has told the Court in the past that teen-age girls are mature enough to decide whether to have an abortion without parental input. Which is it?

Perhaps the most troubling feature of Roper is that it extends the High Court's recent habit of invoking foreign opinion in order to overrule American laws. "It is proper that we acknowledge the overwhelming weight of international opinion against the juvenile death penalty," Justice Kennedy writes. We thought the Constitution was the final arbiter of U.S. law, but apparently that's passé.

In invoking international "opinion," however, the majority also seems rather selective. Justice Kennedy cites the United Nations Convention on the Rights of the Child, which outlaws the juvenile death penalty. But that Convention also prohibits imprisonment without parole for juvenile offenders--a penalty favored by some, if not all, 50 states. Is the Court ready to sign on to that international standard too?

Such inconsistency suggests that the real reason this Court has taken to invoking "international opinion" is because it is one more convenient rationale that the Justices can use to make their own moral values the law of the land. And it is no surprise that Justice Kennedy's majority opinion is joined by the four liberal Justices who have long been on record as opposing the juvenile death penalty--Ruth Bader Ginsburg, Stephen Breyer, David Souter and John Paul Stevens. In Roper they finally found a case, and an inventive legal hook, on which they could lure Justice Kennedy.

If there is a silver lining to this case, it is that it probably disqualifies Justice Kennedy from any consideration to be promoted to Chief Justice when William Rehnquist resigns. Some in Washington, and even some in the Bush Administration, have floated this possibility as a way to ensure an easy Senate confirmation. But we doubt that the red-state voters who re-elected President Bush, and gave Republicans a larger majority in the Senate, did so to promote a Justice who thinks their values are an affront to "standards of decency."

**Jack Moroney (RIP)** · 03-02-2005, 06:34

I think before the supreme court uses international opinion to decide our fate they need to get off their butts and spend a few weeks to see why those countries do what they do and how they evolved, or failed to evolve, to reach that state. All teenagers are not created equally and some grow old at a very early age. I have mixed feelings about capital punishment, however based upon what I have seen from our courts, should anyone ever do harm to my family or friends I am sure that I would prefer that those black dress wearing jurists not get involved with my desired dispensing of justice that I felt was most appropriate.

Jack Moroney

Doc · 03-02-2005, 06:38

Take away the State's right to take the life of a person under the age of 18 that is convicted of a heinous crime?

This makes as much sense as taking away the right of a LEO to take the life of someone under the age of 18 that is shooting at them in the commission of a crime. Let's see, is he over 18? Can I shoot back? I'm 2 years away from retirement and don't want to go to jail with all of the people I put away in the last 28 years.

If we follow this logic, then underage participants in a combat zone should be spared too.

Maybe we should wait until they are out of ammo and then give them the hug that mommy and daddy didn't give them and send them on their way?

I am all for compassion, but I guess we will have to agree to disagree on this one.

PC is for people not in the trenches. That's all this is, Politics.

FILO · 03-02-2005, 07:11

I have up close and first hand professional experience on this topic.

A little background: In September 1995, I was hired as the senior investigator for the New York State Capital Defender Office. My jurisdiction was central and western New York. My responsibilities involved interviewing the defendant at length, spending months and at times years talking to them about all aspects of their alleged involvement in the murder. Also I did the complete soup to nuts forensic workup to include visiting the crime scene and securing the services of SME(s). I located and interviewed witnesses and examined and analyzed all LE, ME and lab documents. Essentially, I was primarily responsible for preparing the case for the 1st phase of the trial which was the determination of culpability.

Prior to taking the job, I was a strong supporter of the death penalty. However, after years of working within the system and observing all of its faults, I cannot with clear conscience support the death penalty as it is used in some states. Trust me when I say, I was not converted as a result of getting to know these very disturbed individuals. In fact, in some of the cases, I was revolted to the core of my being as it related to the facts and circumstance of the crime and I had no sympathy for the defendant, no matter the outcome of the trial.

However, in many instances I have personally witnessed extreme injustices to include working up a 1st degree murder case acquittal in New York State, one of the first since the laws return in 1995. In that particular case, I not only knew the defendant was “innocent” but I had located and interviewed one of the two individuals who I believed, and the evidence pointed to, had committed the murder. Do you know what the “murderer” said to me personally? He said the D.A. had instructed him not to talk to anyone. This meant that the D.A. was obstructing an on-going investigation, all because he had a “high-profile” case and was actually contemplating seeking the death penalty. Moreover, we provided the D.A. with a good-faith letter, outlining all the reasons why, to include identyfying the other indiviiduals who we belived had committed the crime, that he should dismiss the charges against the defendant. Well the D.A. took an even lower road, he chose not to seek death, but he still took the case forward as 1st degree Life Without Parole. In other words, he knew he had the wrong case, but, he thought he was too far into this and it was his first 1st degree case. Well as I noted above, it went to trial and the all white jury from the suburbs returned a not guilty verdict for the defendant who was a inner-city, middle aged, poor, African-American alcoholic.

Justice was served in that particular case, but only because the case was vigorously investigated from the very beginning not when the defendant is seeking relief in Federal Courts after being sentenced to death. Too many states, especially in the south, the courts only provide minimal financial resources. Not too long ago, Alabama provided defense counsel with $2,000 for the initial legal, investigative and administrative costs. When I had my own business, I typically billed that much in three to four days of investigation. Therefore, it is a fact, without dispute in my opinion, that the administration of the death penalty is terribly flawed and in many states, terminally so. (pardon the pun)

This doesn’t mean I totally oppose capital punishment, it simply means the death penalty should only be applied in a very small number of cases and only after a very thorough COMPETENT and comprehensive guilt phase investigation.

Just my take!
(edited to include additional pertinent information)

**Pete** · 03-02-2005, 07:29

I rest my case with

http://www.fayettevillenc.com/story....&Story=6876230

They did it. They were chased down the highway and caught by LEOs who were in pursuit. They both got the death sentance but because one was 17 at the time he now is saved by our friends on the high court.

Read about all the murders at the end of the story. None of the defendants argue that they are inocent, just that they were under 18.

Take a life, give up your life.

Pete

03-02-2005, 07:50

It's interesting that in a nation where people mature earlier by every scientific measure, we treat them as children longer.

In the 1800s, it wasn't uncommon for a teenager to have to take on the responsibilities of adults, even at 13 or 14. To be treated as an adult for all intensive purposes. And by every physical and psychological measurement, people mature faster today than ever before. Of course, they don't learn responsibility because they don't need to. We give them excuses. "They're only children".

And now the Supreme Court has given another excuse for not holding them responsible for their actions.

A 17 year old knows the difference between right and wrong. So does a 15 year old. So should a 12 year old. Crimes which call for the death penalty are not accidents, they are crimes that the person committing knew were wrong.

This is a step backward for American Justice.

GreenSalsa · 03-02-2005, 08:55

As soon as you make some of these kids "immune" they will become the perfect assassin / thug…they will know they cant be touched.

I do believe in the death penalty in extreme and proven cases (if we put "mad dogs down" why cant we do the same to non-productive members of society).

Beyond "reasonable doubt" is the standard for conviction, the death penalty should be elevated to beyond a "shadow of a doubt"…in cases where there is overwhelming eyewitness and scientific evidence.

Once he (or she) is convicted, simply give them one last automatic appeal to review the legal process, and then type and cross match the accused for "organ harvesting". The accused will be wheeled into an operating room, and donors will be lined up. Simply put in my opinion, it is the only way that individual can repay his debt to society

Doc · 03-02-2005, 17:13

Pete,

Thanks for the link. TR and I discussed this case today. I was coming back on I-95 from bow-hunting for deer when SGT Lowry passed me and pulled these two over. I did not see the shooting incident go down.

As a Soldier I didn't like it when the powers that be failed to support my mission. We owe it to these fallen LEO's to support them and render the death penalty to these two prisoners. I guess that's not going to happen with one of the two brothers now.

RIP Officers.

DOL

Quote:

Originally Posted by Pete

I rest my case with

http://www.fayettevillenc.com/story....&Story=6876230

They did it. They were chased down the highway and caught by LEOs who were in pursuit. They both got the death sentance but because one was 17 at the time he now is saved by our friends on the high court.

Read about all the murders at the end of the story. None of the defendants argue that they are inocent, just that they were under 18.

Take a life, give up your life.

Pete

**Pete** · 03-02-2005, 18:28

Quote:

Originally Posted by Doc

I was coming back on I-95 from bow-hunting for deer when SGT Lowry passed me and pulled these two over. I did not see the shooting incident go down.

Without reading through all the back stories, IIRC somebody not too far behind you noticed the shooting and pulled over. When the "Poor Children" passed him he followed and using his cell phone relayed locations to LEOs. The brothers shot or tried to shoot at him a couple of times. His info was what allowed the police to corner them a bit up the road by Dunn somewhere.

He was just an average guy on the highway until he saw the shooting and then he did what more Americans should do. He got involved.

Too bad you were not just a bit slower getting in the car that day.

Pete

Doc · 03-02-2005, 18:45

Quote:

Originally Posted by Pete

Without reading through all the back stories, IIRC somebody not too far behind you noticed the shooting and pulled over. When the "Poor Children" passed him he followed and using his cell phone relayed locations to LEOs. The brothers shot or tried to shoot at him a couple of times. His info was what allowed the police to corner them a bit up the road by Dunn somewhere.

He was just an average guy on the highway until he saw the shooting and then he did what more Americans should do. He got involved.

Too bad you were not just a bit slower getting in the car that day.

Pete

You are correct in what happened.

IIRC Pete his name was Ron Waters and he passed away several years ago.

He did an incredible deed that day.

RIP

Doc · 03-02-2005, 18:48

http://www.nccrimecontrol.org/Newsrels/ronwater.htm

You guys can do a web search and get more info.

**Ambush Master** · 03-02-2005, 18:52

Not to hijack, but there was a case here in Texas a few years back, where a hunter on his way home saw a perp overpower a DPS Officer. They wrestled for his gun and the Officer was killed. The hunter pulled over, got out of his vehicle and dropped the guy with his deer rifle. The DPS anonymously awarded the guy a Presentation .45 for his involvement !!

Later
Martin

**Roguish Lawyer** · 03-02-2005, 19:06

Quote:

Originally Posted by Ambush Master

Not to hijack, but there was a case here in Texas a few years back, where a hunter on his way home saw a perp overpower a DPS Officer. They wrestled for his gun and the Officer was killed. The hunter pulled over, got out of his vehicle and dropped the guy with his deer rifle. The DPS anonymously awarded the guy a Presentation .45 for his involvement !!

Later
Martin

Don't mess with Texas.

Bravo1-3 · 03-02-2005, 19:46

While many states are shying away from the death penalty, Texas is installing an express lane.

Goggles Pizano · 03-02-2005, 20:20

Gratuitous Ron White plagiarisation B13?