EDITOR’S NOTE: This piece appears in the March 28, 2005, issue of National Review.
There are plenty of reasons to deplore Roper v. Simmons, the Supreme Court’s decision that a murderer under the age of 18 when he committed his crime cannot be given the death penalty. The Court majority once more exhibited for all to see that dazzling combination of lawlessness and moral presumption which increasingly characterizes its Bill of Rights jurisprudence.
The opinion starts unpromisingly, informing us that by “protecting even those convicted of heinous crimes, the Eighth Amendment reaffirms the duty of the government to respect the dignity of all persons.” Readers may wonder about the dignity of the victim. Christopher Simmons, then 17, discussed with two companions his desire to murder someone, saying they could “get away with it” because they were minors. He and a juvenile confederate broke into the house of Shirley Crook, covered her eyes and mouth, and bound her hands with duct tape. They drove her to a state park, walked her onto a bridge, tied her hands and feet together with electrical wire, completely covered her whole face with duct tape, and threw her into the Meramec River, where, helpless, she drowned. Simmons bragged about the killing to friends, telling them he had killed a woman “because the bitch seen my face.” Arrested, he confessed, and was sentenced to death.
The Supreme Court, though conceding that retribution and deterrence are valid functions of the death penalty, intoned that “we have established the propriety and affirmed the necessity of referring to ‘the evolving standards of decency that mark the progress of a maturing society’ to determine which punishments are so disproportionate as to be cruel and unusual.” That means the justices’ views evolve, which is, by definition, progress. Justice Anthony Kennedy’s opinion attempted to mask this unpalatable reality by claiming that the meaning of the Eighth Amendment had changed owing to a new “national consensus” against executing under-18 killers. This assertion of a “national consensus,” however, was derived from the example of just 18 states that had faced the issue of granting an exemption to juvenile murderers out of the 38 with the death penalty. This dubious escalator means that the founders who allowed such punishments fall well short of our superior understanding of decency, as do the 20 states that today permit the execution of those younger than 18. In Simmons’s case, it took the Missouri legislature, the governor, a unanimous jury, and a judge to bring him to death row. All now stand branded, five to four, as morally indecent. The majority did not, and could not, explain why any state is forbidden to make a policy choice–denied its constitutional sovereignty–because other states disagree with it.
Trying its hand at psychology, the Roper majority argued that neither deterrence nor retribution supported the death penalty for killers under the age of 18. As for deterrence, the Court said, the likelihood that teenagers engage in cost-benefit analysis that attaches any weight to the possibility of execution is so remote as to be virtually non-existent. This in a case where the murderer counted on his minority to “get away with it.” This from a Court that finds teenage girls sufficiently mature to decide on abortion without parental knowledge or consent. Retribution was discounted on the theory that young killers, apparently without exception, are less culpable than presumably more thoughtful adult murderers. The Court ignored the fact that juries, unlike the Court, do not decide such issues categorically but by evaluation of the individual and must take youth into account as one mitigating factor.
Retribution was also ruled out without considering its indispensable role in the criminal-justice system. The mixture of reprobation and expiation in retribution is sometimes required as a dramatic mark of our sense of great evil and to reinforce our respect for ourselves and the dignity of others. None of this was examined by the Court. Its steady piecemeal restriction of the death penalty–now “reserved for a narrow category of crimes and offenders”–suggests that the Court is on a path to abolish capital punishment altogether even though the Constitution four times explicitly assumes its legitimacy.
The most ominous aspect of Roper, however, is the Court majority’s reliance upon foreign decisions and unratified treaties. The opinion cited “the stark reality that the United States is the only country in the world that continues to give official sanction to the juvenile death penalty,” a fact the Court found “instructive” in interpreting the American Constitution. Since the nations of Europe have, among others, abolished the death penalty, the Court seems to be suggesting that we (or rather the justices) should do likewise. After all, “[w]e have previously recognized the relevance of the views of the international community in determining whether a punishment is cruel and unusual.” If the meaning of a document over 200 years old can be affected by the current state of world opinion, James Madison and his colleagues labored in vain…
YOU CAN READ THE REST OF THIS ARTICLE IN THE CURRENT ISSUE OF THE DIGITAL VERSION OF NATIONAL REVIEW. IF YOU DO NOT HAVE A SUBSCRIPTION TO NR DIGITAL OR NATIONAL REVIEW, YOU CAN SIGN UP FOR A SUBSCRIPTION TO NATIONAL REVIEW here OR NATIONAL REVIEW DIGITAL here (a subscription to NR includes Digital access).