by Matt Barr

Death penalty for juvenile offenders unconstitutional 15 years later

Another preposterous Eighth Amendment Cruel and Unusual Clause decision from this damned Court. I'll probably have more to say when less busy and less disgusted. For now, a note on an obsequious concurrence filed by Mr. Justice Stevens, and joined by Ms. Justice Ginsberg:

Perhaps even more important than our specific holding today is our reaffirmation of the basic principle that informs the Court’s interpretation of the Eighth Amendment. If the meaning of that Amendment had been frozen when it was originally drafted, it would impose no impediment to the execution of 7-year-old children today.

No State in the union would authorize the execution of a seven-year-old child today. Does Stevens believe in his dotage that that's because the Constitution changed? It's because our "national consensus" respecting our "evolving standards of decency" manifested itself the way it's supposed to in a free country: through our laws.

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 Amendment. In the best tradition of the common law, the pace of that evolution is a matter for continuing debate;

By whom? I'm no longer allowed to debate it, because I don't have Stevens' gig. I'm just, you know, one of the governed.

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.

That last is a dig at Mr. Justice Scalia's dissent, which reads in part:

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.

I am unpersuaded that Hamilton or anyone whose first language was English would have signed on to the moronic proposition that 47 percent of states which permit capital punishment not including offenders who were juvenile when the offense was committed is a "national consensus." What of the 53 percent which do?

A bare majority of jurisdictions isn't a "consensus" -- let alone a minority. In a framework where there is no impediment to the people changing the law to make it the way they want it, and with no political minorities whose rights are impacted by virtue of their minority status, a legitimate "consensus" is manifested through "legislation." What having 18 states which authorize capital punishment but not for juvenile offenders means is not that every state should be that way, it means that states are perfectly capable of making that the law, and perfectly likely to make that the law, if that's how they want it. Missouri could make that law. It hasn't.

Never mind that juries are fully able to consider the offender's age in mitigation when they sentence. In this case, they considered the defendant Simmons confessed to his desire to kill someone, anyone, at random, described his role in burglarizing Shirley Cook's home, covering her eyes and mouth and binding her hands with duct tape, abducting her, driving her to a river, covering her head with a towel, tying her hands and feet together with electrical wire, wrapping her whole face with duct tape, and throwing her into the river to drown, and decided being 17 didn't make him less a monster.

But to hell with them. Right?

UPDATE: SCOTUSblog has a more measured analysis of the majority opinion than is likely to come from me. One passage struck me:

Kentucky, Kennedy's opinion noted, will not execute Kevin Stanford -- the individual involved in the 1989 case [Stanford v. Kentucky, which 15 years ago said applying the death penalty to 16 or 17 year old offenders squared with the Eighth Amendment] -- because he governor commuted his death sentence in 2003.

Another way the system works. Or did, before today.

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