March 3, 2005
Should The Supreme Court Define Cruelty?

By Steve Chapman

The Supreme Court's decision outlawing the death penalty for anyone under 18 has infuriated opponents of judicial activism. Perhaps the most prominent critic is Justice Antonin Scalia, who charged that in overruling the elected lawmakers of various states, the court "proclaims itself the sole arbiter of our nation's moral standards."

In this view, the justices must choose between respecting the words of the Constitution and following their own personal views. But Scalia and other opponents of "judicial activism" ignore something very important: The words of the framers were often empty vessels destined to be filled by the courts. They are so unspecific and open-ended as to leave judges no choice but to . . . well, use their judgment.

In this case, a majority of the court ruled that the execution of someone who was 17 at the time of the crime violates the Eighth Amendment, which prohibits "cruel and unusual punishments." It reached this conclusion just 16 years after deciding that the execution of a 17-year-old did not violate the Eighth Amendment.

What changed was not the Eighth Amendment, which reads exactly as it did then. What changed, in the court's opinion, were the "evolving standards of decency that mark the progress of a maturing society." Today, it sees a new national consensus against such executions. "A majority of states have rejected the imposition of the death penalty on juveniles under 18," said the court.

Scalia, however, says that's the wrong barometer, because it includes states that don't allow the death penalty for anyone. Of the states that utilize capital punishment, most do allow it for 17-year-olds. The number of minors sentenced to death has, Scalia notes, "either held steady or slightly increased" since 1989 -- proof that there is no groundswell of moral revulsion.

But the real flaw in the reasoning of both sides is the whole idea of deferring to public opinion. If there were a true consensus against executing kids, we wouldn't need the justices to ban the practice -- our democratically elected legislatures would eventually get around to banning it. It's only when there is not a national consensus that the court has a reason to step in.

The Bill of Rights, after all, is expressly intended to prevent the majority from having its way. So it wouldn't have made sense for the framers to forbid only those forms of cruel and unusual punishments that the majority rejects. The sole point is to forbid those barbarities that the public would otherwise adopt.

The death penalty, which is inherently inhumane, is even more so when used on people who have not lived long enough to acquire the rights we confer on adults. If 17-year-olds are not responsible enough to make their own decisions about voting, joining the military or taking out loans, how can we treat them as indistinguishable from adults when they commit crimes?

Scalia says some 17-year-olds are mature enough to be held accountable, and that juries are capable of deciding which ones. But that argument proves too much. By his logic, why not let juries sentence 15-year-olds to death? Or 13-year-olds? You have to draw the line somewhere, and it makes eminent sense to draw it at the same place it's drawn for the privileges of adulthood.

Some conservatives think this "evolving standards" approach is a lot of hooey. In their view, the Constitution should be read only to ban punishments that the framers saw as cruel. But if the courts interpreted the amendment that way, we would still be allowing mutilation and maiming of criminals. The Fifth Amendment, after all, says defendants may not be put "in jeopardy of life or limb" twice for the same offense -- which suggests that they can be put in jeopardy of life or limb once.

For that matter, a strict originalist interpretation would mean children as young as 7 could be eligible for a lethal injection. Douglas Abrams, a professor of juvenile law at the University of Missouri-Columbia, says that in the era of the founders, there were cases of 10-year-old criminals being hanged.

If the framers wanted to establish a cutoff age for the death penalty, or if they wanted to outlaw only certain specific punishments, they could have done so. Instead, they chose broad generalities that they knew were bound to change in meaning with the passage of time, and which the courts would have to define.

When Scalia laments the spectacle of constitutional terms being "determined by the subjective views of five members of this court," he shouldn't blame his colleagues. They're only doing what the framers obligated them to do.

2005 Creators Syndicate

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Steve Chapman

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