Wednesday, March 02, 2005

Legally Mugged - The Supreme Court Decision on Capital Punishment

“We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.”

The Preamble to the United States Constitution

The Supreme Court ruled yesterday that the death penalty for “youths” is unconstitutional. The case that brought the question to the court was the case of Christopher Simmons who, at seventeen, murdered a Missouri woman named Shirley Cook.

My conclusion, based on reading the majority and minority opinions an d my own innate sense of what’s really going on behind the curtain in the ruling, is that we have been mugged by the highest court in the land.

The majority in the Supreme Court’s opinion described the brutal murder as follows:

“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

“The three met at about 2 a.m. on the night of the mur-
der, 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 Sim-
mons.) 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 bed-
room, where he recognized her from a previous car acci-
dent 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 Court did not deny that the crime committed was heinous, nor did it deny that the crime was premeditated. The description of the crime made all of that very clear. The reasoning for the majority opinion was two-fold. First, citing “evolving standards,” the Court made the following determination:

“Drawing the line at 18 years of age is subject, of course,
to the objections always raised against categorical rules.
The qualities that distinguish juveniles from adults do not
disappear when an individual turns 18. By the same
token, some under 18 have already attained a level of
maturity some adults will never reach. For the reasons
we have discussed, however, a line must be drawn. The
plurality opinion in Thompson drew the line at 16. In the
intervening years the Thompson plurality.s conclusion
that offenders under 16 may not be executed has not been
challenged. The logic of Thompson extends to those who
are under 18. The age of 18 is the point where society
draws the line for many purposes between childhood and
adulthood. It is, we conclude, the age at which the line for
death eligibility ought to rest.”

As I read through the opinion as a layman I felt somewhat helpless. Isn’t that the way it often is when we who are uninitiated try to weave our way through the maze of legal language. We need a lawyer to interpret what they lawyers have said. It all reminds me of what things were like when I was stationed in Panama back in the sixties. Some of the guys I new had vehicles and would occasionally drive into Panama City. When they parked they always hired a guard, then hired a guard to keep his eye on the guard.

Knowing that, I took my thinking to Joshua Davey, one of the authors of a really wonderful blog titled “Letters From Babylon.” This is what Josh, who favors the elimination of the death penalty, had to say about the matter of “evolving standards” used as one of the foundations for the ruling:

“But even if originalism cannot do all the work on this issue—even if we need not be limited by 18th century notions of appropriate punishment—the court’s decision is perhaps the worst possible approach. In reaching its decision, the court relies on “evolving standards of decency,” which, it contends, indicate that our society has collectively come to the decision that application of the death penalty to those who were underage at the time of their offenses is in fact cruel and unusual.”

“The first problem with this approach is that it sets the Court up as the arbiter of societal trends, something for which it is ill-suited. It seems ridiculous to me to believe that nine, unelected, mostly over-seventy longtime residents of Washington, D.C. possess the competency to adjudicate emerging social consenses. The second problem is related to the first; constitutionalizing the issue in this way forever removes it from legislative consideration, and enshrines a precedent that will stand even when “our social consensus” swings back the other direction. How much better to let our democratic legislatures and the quintessentially democratic institution of the jury decide whether these individuals are appropriate candidates for capital punishment.”

I think if I am reading this right there is a really important issue that the Court decided without benefit of it being the question at hand. The Supreme Court has elevated itself to the position of being this nation’s “arbiter of social trends.” Now I suppose, at first blush, that’s better than leaving these decisions the hands of Eminem, Howard Stern, or Tommy Hilfiger. The problem with the decision is that, as Mr. Davey noted, “constitutionalizing the issue in this way forever removes it from legislative consideration, and enshrines a precedent that will stand even when “our social consensus” swings back the other direction.”

My God, don’t these nine people have enough power already? I’m just a layman, but this sure seems to me to be particularly dangerous. Am I missing something here? I live in Kansas and see societal trends moving in an ominous direction. And now the Supreme Court of the United States is using these “evolving standards” as a basis for ruling of issues of great import for this nation. All I can say is, “Katie bar the door.”

Even worse though, was the second stream of reasoning - the Court’s use of international opinion in its ruling:

“It is proper that we acknowledge the overwhelming
weight of international opinion against the juvenile death
penalty, resting in large part on the understanding that
the instability and emotional imbalance of young people
may often be a factor in the crime. See Brief for Human
Rights Committee of the Bar of England and Wales
et al. as Amici Curiae 10.11. The opinion of the world
community, while not controlling our outcome, does pro-
vide respected and significant confirmation for our own

The majority basically stuck their thumbs into the wind to find out what the rest of the world was thinking on the matter. Now the issue of capital punishment of juveniles may be one thing, but what about other “evolving standards” around the world. In Europe euthanasia is now being widely accepted as a human right. In 2002, for example, the Netherlands codified the practice. One of our own states, Oregon, now has an assisted suicide law. I briefly read through what the state of Oregon had to say in their coldly clinical document, 127.800 s.1.01. It was chilling, filled with language that sent shivers up and down my spine. Read the following and see if it doesn’t do the same to you:

“(5) "Counseling" means one (my emphasis added) or more consultations as necessary between a state licensed psychiatrist or psychologist and a patient for the purpose of determining that the patient is capable and not suffering from a psychiatric or psychological disorder or depression causing impaired judgment.”
“(6) "Health care provider" means a person licensed, certified or otherwise authorized or permitted by the law of this state to administer health care or dispense medication in the ordinary course of business or practice of a profession, and includes a health care facility.”
“(7) "Informed decision" means a decision by a qualified patient, to request and obtain a prescription to end his or her life in a humane and dignified manner, that is based on an appreciation of the relevant facts and after being fully informed by the attending physician”

It’s hard to fathom. For some, by law, it may only require one “consultation” from a licensed psychiatrist or psychologist to set a fellow human being on the road to assisted suicide.

How long will it be until “evolving standards” demand that this will become a national constitutional right? How long until “evolving standards” will demand that those among us who are feeble or infirm be euthanized against their will? It’s already happening in the Netherlands. Why, based on the Supreme Court’s opinion, shouldn’t it be happening here in the United States?

I took a class in international relations a little over a year ago here at Emporia State University. I was the oldest person in the class. What was interesting was that the classroom was a microcosm of the frightening reality of “evolving standards.” We spent a couple of class days discussing some of the grisly practices legally accepted in some “civilized” nations of the world. Most prominent among them was China’s “one child policy.” The younger people in the class thought that the idea should also be exported to the United States. When I objected I was told that my thinking was the thinking of an “old man with outdated ideas.” I was further told that “times and things change and with that we need to ‘go with the flow.”’

I, for one, don’t want this country further eroding its deficit to the world by importing ideas and laws that, in themselves, are inherently evil. Yet that seems to be where we’re heading. Standards are “evolving” and, according to our highest court, we need to get in step with all that’s going on.

Speaking for the four dissenting justices, Antonin Scalia had this to say:

“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 im-
plausible 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 omit-
ted). 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 Constitu-
tion, should be determined by the subjective views of five
Members of this Court and like-minded foreigners, I dissent.”

Amen, Justice Scalia. I’m with you; I too dissent. Those who have professed themselves wise in making this obscene decision have proven themselves to be fools. The unfortunate reality, though, is that their foolishness is now becoming the law of the land.


James Fletcher Baxter said...

Laws in a free society establish minimal lines of human behavior. Laws cannot establish social standards of excellence via ethics and morality. Such judicial sloppiness indicates judges who are in over their heads. Additionally, judges are without authority to 'make law,' even as the executive branch is without such power.

Their open deference to Old World opinion emulates a blind imperception of the relation between choice and results in that devolving and regressive mass collectivization.

There is not a shred of intellectual or ethical character in this decison as based on such 'other world' regression. It cannot hold up to thoughtful comparison. It will fail.

To put it simply: It is really DUMB.

Commanded Citizen said...

My friend, you were much more articulate and forgiving about this decision than I was on my own blog yesterday. If you don't like harsh language, you might not want to check it out.

Commanded Citizen said...

My friend, you were much more articulate and forgiving about this decision than I was on my own blog yesterday. If you don't like harsh language, you might not want to check it out.

MercurialMine said...

If you can't vote or go to war or anything else when you are 16 or 17 then why the hell can you be executed? If you can't vote against the death penalty, how can you be bound to it? Maybe this is a scary trend in the Supreme Court, deciding social standards. But if legislators hadn't been so short-sighted then the Supreme Court wouldn't have had to have stepped in and restored sanity. You may not like what the Court is doing, but when legislators and citizens won't deal with the issues, who is left to turn to?

Deluded Simpleton said...

While a few developing nations do undoubtably still execute minors until yesterday the USA stood alone amongst developed nations in executing its children and alone in the world (excepting Somalia which has no government)in officially endorsing this policy.
An amendment to the constitution would have been a more elegant solution, however with a president in power who puts such little value on human life, that is something that was unlikely to happen.