Given the right wing tilt of today’s Supreme Court, it is remarkable that death penalty jurisprudence in moving in a somewhat progressive direction. Witness yesterday’s 5-4 decision that a boy who killed at age 17 should not be executed for his crimes (Supreme Court, 5-4, Forbids Execution in Juvenile Crime). The heart of the Supreme Court turnaround lies with Justice Kennedy who, in 1989 ruled with the majority that juvenile executions were societally acceptable. He’s now apparently had a change of heart and wrote one of the majority decisions. One of the critical arguments he relied on in his decision was that every one of the nations that, in 1990, executed minors had turned against such practice. He argued that there was a consensus among nations now against juvenile execution that there hadn’t been in 1989:
…The United States is the only country in the world that continues [to] official[ly] sanction the juvenile death penalty. This reality does not become controlling, for the task of interpreting the Eighth Amendment remains our responsibility. Yet at least from the time of the court’s decision in Trop, the court has referred to the laws of other countries and to international authorities as instructive for its interpretation of the Eighth Amendment’s prohibition of “cruel and unusual punishments.”
…Only seven countries other than the United States have executed juvenile offenders since 1990: Iran, Pakistan, Saudi Arabia, Yemen, Nigeria, the Democratic Republic of Congo and China. Since then, each of these countries has either abolished capital punishment for juveniles or made public disavowal of the practice. In sum, 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.
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. The opinion of the world community, while not controlling our outcome, does provide respected and significant confirmation for our own conclusions.
“Hey Kennedy, we ain’t gonna let
no stinkin’ furriners tell us we who we
can fry!” (credit: AP)
This argument in particular enrages Antonin Scalia in his dissent:
…The basic premise of the court’s argument – that American law should conform to the laws of the rest of the world – ought to be rejected out of hand…
Foreign sources are cited today, not to underscore our “fidelity” to the Constitution, our “pride in its origins,” and “our own [American] heritage.” To the contrary, they are cited to set aside the centuries-old American practice of letting a jury of 12 citizens decide whether, in the particular case, youth should be the basis for withholding the death penalty. What these foreign sources “affirm” is the justices’ own notion of how the world ought to be, and their diktat that it shall be so henceforth in America. The court’s parting attempt to downplay the significance of its extensive discussion of foreign law is unconvincing. “Acknowledgment” of foreign approval has no place in the legal opinion of this court unless it is part of the basis for the court’s judgment – which is surely what it parades as today.
Running through Scalia’s argument is a rampant xenophobia (is there a legal term for “hatred of foreign legal systems?”), a deep mistrust and rejection of world public opinion and international jurisprudence. It is of a muchness with current U.S. rejection of all international legal bodies such as the International Court of Criminal Justice. In Scalia’s world, the ‘furriners’ are soft-headed, lily livered cowards who like to coddle criminals, psychopaths and other miscreants. To rely on such authorities to craft a decision on U.S. law, for Scalia is a heinous offense.
We should also point out the distortions and twisted terms of Scalia’s dissent used to try to demean and devalue Kennedy’s argument. Scalia mistakenly paraphrases his position as contending “American law should conform to the laws of the rest of the world.” This is certainly not what Kennedy is arguing. He is merely saying that if no other nations in the entire world execute minors, this is a fact we should take notice of in writing this decision. “Foreign sources [note the ominous use of “foreign”] are cited today…to set aside [the American jury system]. Again, those ominous foreigners are attempting to turn us away from our own “American heritage.” How’s that for legal xenophobia? And finally, Scalia’s continuing paranoia manifest itself here: “Foreign sources affirm…their diktat that it shall be so henceforth in America.” Note that ominous Bolshevik-like term diktat. Whenever you want to appeal to American nativist sentiment you need only resort to such incendiary terms to get hackles properly raised.
I’d say that Scalia must’ve really loved Invasion of the Body Snatchers because his own paranoia is reflected in that scary xenophobic film allegory as well.
Sorry… have to wildly disagree with your assessment of Antonin Scalia. Your assessment is way, way off. First off… none of the “kids” on death row who are set-up for execution are actually kids anymore. The youngest I’ve been able to find online is 24 (now). Why is it we can assume a child is mature enough to choose to abort a child at 13 yet is not mature enough to carry out murder at 16? But the largest mistake(s) you have made in your assessment is that somehow the US law is subject to international law. US law is ONLY subject to the constitution. Capital punishment was not considered cruel and unusual in 1870… nor was ear notching for that matter. However, legislation has outlawed ear-notching as cruel and unusual… and rightfully so. The difference is that you have confused the judicial branch (aka the supreme court) with the legislative branch (aka the house and senate). Judges do NOT have the constitutional right nor authority to create policy or create legislation. Unfortunately the Warren court set this awful precedent of policy making from the bench. So much for legislative representation. In fact, judges of our era are rampantly disenfranchising the voters in their states by unconstitutionally overriding the voice of the people. Now… I’m not saying I am for or against the execution of juvenile murderers, but I AM for keeping the branches separate. If we wish to ban juvenile execution, or allow gay marriage, or abortion or a million other issues… let’s do it constitutionally by taking this to the legislative branch and let the people vote on it via their representatives… after all, we ARE a democratic republic. Voice of the people, not the judges should rule. Let’s keep this a representative government.
Richard Silverstein says
You don’t understand the law.
You don’t determine whether a person is eligible for execution based on their age at the time of execution. You base it on their age when they committed the crime. No one says a child is “not mature enough to carry out a murder at 16.” Where did you get that outlandish idea? Of course they are. But are they mentally mature enough to understand their action & understand that it is a gross violation of societal norms, esp. if many of them have mental defects or mental illnesses?
Again, READ MY POST! I do not say that US law is “subject to international law.” Do you understand the diff. bet. saying the norms of international jurisprudence may be taken into acct. as a factor in rendering a decision about US law; and saying US law is subject to international law?? I highly doubt you understand the difference because you have bastardized my argument.
So I see…because capital punishment was not considered cruel & unusual in 1870 it should not be considered such today? Does that mean that we should also return to the days of slavery (which only ended in 1863) or separate but equal (which was the norm after 1870)?? And you’re pleased that ear-notching was banned as cruel & unusual punishment, but hanging a man till he’s dead is not cruel & unusual? I guess we have diff. standards of what’s cruel & unusual. To me killing a man or woman is more cruel than notching an ear.
You know nothing about constitutional law. If you did you’d understand that it’s the justices role to “interpret” the Constitution & that understandings of that document evolve over time. That seems to have missed you entirely.
I know the diff. bet. the legislative & judicial branches so pls. don’t deign to lecture me on that subject. The justices in this case have not created policy or legislation. The Supreme Court ever since John Marshall’s first major decision have always seen their role as having the power to overrule laws and policies which violate the Constitution. You call this creating new policy & law. But it is actually what the Supreme Court has done almost fr. its inception. When the Court rules in a way you don’t like then it’s creating new laws & policies. When it rules in a way you like, then it’s interpreting the Constitution. You can’t have it both ways though I know you’d like to try.
Paul Conboy says
I just watched Justice Scalia last night on television. All I can say is wow! What a brilliant legal mind. What if one of these “Kids” you are so
concerned about kills one of your Kids? We the people must decide how to
best deal with feral youth, not the supreme court.
Richard Silverstein says
Just watched the new German Hitler flick last night on television. All I can say is wow! What a brilliant thinker and such a handsome mustache to boot!
If the decision Scalia wrote in this case is any indication of the overall quality of his opinions, I’d say that instead of “brilliant” I’d call him vapid, bankrupt, etc.
What I find interesting in the comments posted here is that the writers simply do not know their own government. They don’t understand the three branches, their respective roles & the reasons for checks & balances. Imagine if these two were responsible for writing the U.S. constitution presently. “All I can say is wow!”
Interesting that Paul suggests that “we the people” should decide which boys & girls fry. I’m sure glad that the framers had something very different in mind. A perfect example of why “we the people” don’t get final say in matters like this is the three ring circus currently playing in Pinellas County (Florida) where Michael Schiavo is begging for everyone to stay the hell out of the private affairs of himself & his wife. Thank God, both Judge Greer and Justice Kennedy found no reason to interpose their own will between Michael and Terri. If not for the cooler heads of judges, “we the people” would perform some egregious miscarriages of justice and law.
And as for your repulsive and disgusting use of the term “feral youth” (as if teenage killers were little more than wild animals to be put to sleep for their misdeeds), I’d say you’d find life in Nazi German a bit more to your liking. In fact, might I make an ever so modest proposal in the spirit of Jonathan Swift? Instead of waiting for these wild human animals to kill why don’t we have them examined by doctors and given IQ tests at birth or shortly thereafter? Those who fail the test by exhibiting mental disease, defect or illness would be euthanized much as Hitler did in his era. Now that’s a plan I could get behind!