4 , 2005
So now the U.S. Supreme Court is writing decisions
based on what Our Betters in Europe think is best. That's what
the Big Bench did on Tuesday when it issued a 5-4 decision, written
by Justice Anthony Kennedy, overturning the death penalty for
crimes committed by minors.
Let me stipulate. The outcome -- an end to executions
of those who committed crimes as minors -- isn't what bothers
me here. There is an argument to be made that, as per the Eighth
Amendment, it is "cruel and unusual" to execute those
convicted of crimes committed when they were minors. Minors, as
Kennedy put it, are "categorically less culpable than the
But the court didn't limit its guidance to the
U.S. Constitution. Kennedy wrote that the court can and should
consider "the overwhelming weight of international opinion
against the juvenile death penalty," including opposition
among "leading members of the Western European community."
Be afraid, America. Be very afraid. European Union
countries don't simply oppose capital punishment; they also oppose
life without parole and mete out notoriously short sentences for
heinous crimes. In recent years, a German court essentially sentenced
a man who killed and ate another man -- the killer was so proud
he videotaped everything -- to eight and a half years in prison.
He is expected to walk free after five years.
Criminal Tribunal on Yugoslavia found a Bosnian Serb colonel guilty
of aiding and abetting the genocide that resulted in thousands
of deaths. His sentence: 18 years. Don't blame European juries.
Judges made the above rulings, on a continent where juries get
If you're wondering who died and made Justice
Kennedy -- or Western Europe -- king, consider that Kennedy also
referred to the U.N. Convention on the Rights of the Child that
prohibited the execution of minors -- even though the United States
failed to ratify that treaty. The definition of an activist judge
could be a judge who calls on the government to adhere to a treaty
Kennedy wasn't even on solid ground factually.
"In sum," he wrote, "it is fair to say that the
United States now stands alone in a world that has turned its
face against the juvenile-death penalty."
"That's not quite true," said University
of California at Berkeley professor Franklin E. Zimring, who was
quoted extensively in The New York Times in support of Kennedy's
continental leanings. Iranian law prohibits executions of minors
but considers a 10-year-old girl to be an adult, Zimring noted.
In 2004, The Christian Science Monitor reported that five countries
-- United States, China, Pakistan, Iran and Democratic Republic
of Congo -- executed minors in the previous five years.
Michael Rushford of the pro-death penalty Criminal
Justice Legal Foundation admitted that the roster of countries
that still have the death penalty for adults doesn't exactly "help
the pro-death penalty cause," as many of those countries
don't cherish the notion of freedom. On the other hand, America
does not own those countries' abuses. In the meantime, Rushford
noted, "The Supreme Court has now said we're all going to
wear the same socks and we're going to decide what a jury can
That is the European Union model. Same socks.
And jurors aren't welcome.
Kennedy also cited a "national consensus"
in America against the juvenile-death penalty as a reason to overturn
it. I must ask: Since when has the court issued rulings based
on what average folk think?
if the Supreme Court did care what people thought, it wouldn't
be looking to Europe to decipher the U.S. Constitution. Zimring
told me that the issue here isn't the 72 death-row inmates who
committed capital murder as minors. Conservatives bristle at the
mention of Europe, he explained, because, "As soon as you
internationalize the discourse of capital punishment, then Arkansas
no longer has a point."
That's right. But what else will Americans have
to give up? Zimring noted that the United Nations has forced countries
to end the juvenile-death penalty and the European Union forced
Turkey to end capital punishment. He noted that the other countries
complied for economic, not moral reasons.
Now, when countries have buckled to this pressure
for the money, an America court interprets their surrender as
an international trend against the death penalty. That is the
EU way. Force dissenters to go along. Then boast that you have
Individual rights? They're not high on the EU
list. Then again, neither is punishment.
2005 Creators Syndicate
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