One of the judges chosen to take part in Saddam Hussein's trial along with a relative was murdered recently. Things like that do not happen here, right? Not quite. The husband and mother of a federal judge was murdered gang style with a white supremacist that threatened the judge's life when she ruled against her the prime suspect.
In a different but still seemingly as arbitrary category, a person on the Slate fray noted that he was taking a break of undetermined duration because his wife and infant child was killed in a car accident. We go about our lives in part because we do not focus on the chance -- for some more than just a tiny one -- that tragedy will strike. And, we look on with horror when it does occur to someone else, but a restrained one: surely, this will not happen to me. For how can we go about our business if we think that way?
Of course, some who read this might mention with a bit of disdain yesterday's ruling that struck down the execution of minors as unconstitutional.* A cheap shot of sorts, since any number of categories of brutal murder does not result in capital punishment, sometimes because they are barred. For instance, thirteen-year-olds kill. Few would agree that they should be executed, including Justice O'Connor, who dissented in yesterday's ruling [it is to be noted that she agreed with the reasoning on what 'cruel and unusual' means, just not its application here ... thus, the former was decided 6-3].
I linked up some thoughts on the subject that were posted back when it was argued, but a few additional thoughts on the opinions might be useful. Justice Stevens' had a curious concurrence that was a little celebration on how his interpretation of the Eighth Amendment (and the Constitution itself) was reaffirmed. I do think his comment that Alexander Hamilton would now vote the same way was a tad bit much. Is this determined by seance?
Nonetheless, Justice Stevens is on sound ground in my view when he noted that the Constitution should be interpreted using a common law approach with the meaning of many of its terms and conditions developing over time. It boils down to how broadly one does this, and a written Constitution does supply inherent limits. Nonetheless, "cruel and unusual" is clearly a term that develops over time.
Justice Kennedy's opinion, as most tellingly shown by Justice Scalia reading parts of his dissent from the bench (a practice traditionally done only a few times a year), offered Justice Stevens (joined by Ginsburg) reason to be pleased. It might be said that an expansive and liberal (libertarian might be a better word in this case) approach to the Constitution is truly underlined when a conservative leaning justice writes the opinion, suggested by Justice Harlan's now honored dissent in Poe v. Ullman (a better explanation of the principles found in Griswold [contraceptives]; ditto Casey, which did a better job explaining the principles of Roe than Roe v. Wade itself. The constitutional basis of privacy rights section was most likely written by Justice Kennedy, who also authored Lawrence v. Texas, the sodomy rights case).
I think the opinion was basically well written. It refreshingly started off by not shying away from the horrors of the crime, including taunts by the defendant that his age would allow him to get away with his heinous crime. [Justice Kennedy appeared during oral argument to be impressed with a brief that spelled out the heinous nature of the crimes involved in these cases.] The maligned (by some sorts) section that held international practice is of some significance, but not determinative, was also sound. As I noted last October, it only reaffirms dicta found in Eighth Amendment jurisprudence from at least the 1950s. Judges have also recognized foreign laws, including state courts that cite decisions from fellow states, for centuries. Why is it suddenly a bad thing?
Justice Kennedy underlined that there are institutions special to our nation, institutions we are proud of. Nonetheless, as other countries do when they look at our courts, we need not ignore that other nations might have something to teach us. Is what is "cruel and unusual" so unique to our nation?** As suggested by Justice O'Connor's support with its reasoning, the opinion also is loyal to precedent when discussing how "cruel and unusual" is determined, including how judicial judgment plays an important role.
Likewise, it listed the various ways in which minors are different from adults. O'Connor questioned its per se rule, but how does one truly determine the few that warrant death? As the majority noted, the differences make the mistakes that much more troubling. [The appendix spelled out voting, jury, and marriage laws putting eighteen as the age of majority.]
The weakest part of the opinion was its nose counting. As Justice O'Connor noted, the case was clearer that the states as a whole were quite hesitant to execute the mentally retarded. Two things helped the majority. (1) The states that opposed the execution of minors or did not apply the laws that theoretically allowed it did so for a long time -- the ending of the execution of the mental retarded was so telling because the states basically were playing catch-up. (2) It remains true that only a handful of states sentence minors to death with even the defendant involved in the case that is now overruled having his sentence commuted by the governor partly on the grounds that minors should not be executed.
Nonetheless, some would suggest this sort of thing, along with two states that recently reaffirmed the practice, counsels us to leave the matter for the people to decide. It surely is of some relevance that so few states actually allow this sort of thing, but the sample size is so small that it does skewer the results. Personally, I think it a sort of makeweight means to support the "minors are different" section of the opinion, which in my mind provides a stronger basis than inchoate determinations of so-called "evolving standards of decency." The best that might be said about such things -- which drive people like Justice Scalia crazy -- is that it provides a sort of rebuttable presumption. I think the death penalty overall is applied so rarely that it can be used across the board, but that's for another day.
[Some, like Edward Lazarus, find this troubling, but it seems to be only as to degree. They agree judges should draw lines, even against legislative will, but are unsure where. So, nose counting appears to be an important factor. They still are wary, but like Lazarus reject the clear-line alternative, so can more easily live with themselves. Or so it seems. The likes of Lazarus really sound awful wishy-washy, but that is not always deemed a bad thing.]
Finally, judges who appear to think that community values only go in one direction annoy some. History has suggested that the people's views on capital punishment ebbs and flows. Decisions like this provide a rather firm breach of this flexibility, though there is some small chance that it will be overturned sometime down the line (cf. contract and interstate commerce jurisprudence). This argument has some weight, but when it comes to capital punishment, such fickleness suggests a troubling arbitrariness that might only underline the importance of these decisions. And, when eighteen is no longer the age of majority, I might also be a bit more receptive.
For now, I welcome the opinion both for much of its reasoning and its results.
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* My local paper decided to use the remaining space on the page that discussed the ruling to talk about dogs who get shocks while walking over some areas with live power lines. So, minors cannot be electrocuted (or executed in any fashion), but dogs still might be. A bit in poor taste.
** Justice Scalia's dissent noted that "cruel and unusual" in English history originally meant that judges did not have the power to apply punishments not authorized by law, including common law. So, it is rather illogical to use United Kingdom practice as a reference point, even if the UK now uses a determination more akin to our policies (even if Justice Scalia disagrees with the jurisprudence involved).
As with his view that minor citation of foreign law that isn't even binding somehow is uniquely likely to be misused to selectively promote a judge's selective morality (as if they cannot do this with any citations used), this is wrong. The key term is "common law" -- not just statutory law. And, common law is developed by -- shocker here -- judges. Sigh.
A last dispute involves abortion rights. In some cases, minors are thought to be mature enough to choose to have an abortion. So? They also have other limited rights as quasi-adults such as driving and joining the military. Limited is key. Death is total and arguably leaving it to the class able to actually vote on the matter is sound.