Last week, the Supreme Court commuted 79 death sentences to life in prison with a single ruling barring states from executing offenders for crimes committed as minors. Not a bad day’s work, even for “the court.”
Much has been made of Justice Anthony Kennedy’s majority opinion. Justice Antonin Scalia’s dissent reads as if our favorite morally absolute jurist thinks the sky is falling. It’s not.
Scalia complains the ruling is based on nothing more than the opinion of five judges and “like-minded foreigners.” If Scalia weren’t a great writer, he’d be insufferable.
A key question is whether society’s standards of decency have evolved in the 16 years since the court last looked at this issue. They have. In 1989, 25 states executed offenders for crimes they committed before turning 18. Currently, only 20 do. More strikingly, only six have actually used their “privilege.”
Other factors support the ruling. Recent studies show people are not mentally and emotionally mature until later in life, which questions minors’ culpability. Also, states prohibit those younger than 18 from marrying without consent, voting and jury service.
The court also recognized the United States’ status as the sole bastion of cruelty on this issue. The following nations have executed minors since 1990: Iran, Pakistan, Saudi Arabia, Yemen, Nigeria, the Democratic Republic of Congo, China and the United States. Our company here is not the human rights hall of fame. Even worse, until last week, the subgroup that had failed to prohibit or publicly disavow juvenile executions had one member: the United States. Now, it has none.
International norms are not new to U.S. law and are particularly applicable here. The court considered international law in recent decisions dealing with homosexual sodomy (Texas v. Laurence) and affirmative action (Gutter v. Bollinger).
Also, the court’s “evolving standards of decency” test inherently relates to what political bodies have done. Thus, we look at state practice. In today’s interconnected world, it makes common sense to consider what other nations allow. But as a legal doctrine, this is problematic. The court must more clearly develop its jurisprudence related to international law’s influence on U.S. law.
We need to remember the real question: Should the state murder someone for crimes committed as a minor? Aside from above-mentioned reasons not to, accurately determining guilt requires an appeals process often more costly than imprisonment for life. Life sentences effectively incapacitate, without murdering, the worst among us from harming the rest. Finally, no study has shown executions deter crime, and some studies have shown they do not.
Thus, the only logical death penalty justification is society’s desire for revenge, which the state should not encourage or facilitate, much less carry out. The Supreme Court was right to spare at least some from the “machine of death.”