I try to stay away from commenting on legal matters simply because, as a law student, I realize how woefully ignorant I am of how the law really works with all of its complexities. However, I think the recent Supreme Court decision concerning Roper v Simmons is worth talking about for a few reasons. Because this entry is so long, I’m going to make it a separate page. Click on the link below.
Simmons was only 17 when he plotted to commit murder:
There is little doubt that Simmons was the instigator of the crime. Before its commission Simmons said he wanted to murder someone. In chilling, callous terms he talked about his plan, discussing it for the most part with two friends, Charles Benjamin and John Tessmer, then aged 15 and 16 respectively. Simmons proposed to commit burglary and murder by breaking and entering, tying up a victim, and throwing the victim off a bridge. Simmons assured his friends they could “get away with it” because they were minors.
Simmons followed through this plan, and broke into a house with one of his friends. While in the house, he awakened the resident, Shirley Crook, who’s husband was away at the time. It turns out, Crook and Simmons had been involved in an auto accident together, and Simmons decided immediately that he would indeed follow through with his plot to murder:
Using duct tape to cover her eyes and mouth and bind her hands, the two perpetrators put Mrs. Crook in her minivan and drove to a state park. They reinforced the bindings, covered her head with a towel, and walked her to a railroad trestle spanning the Meramec River. There they tied her hands and feet together with electrical wire, wrapped her whole face in duct tape and threw her from the bridge, drowning her in the waters below.
The next day Simmons was bragging to friends that he had killed Crook “because the bitch seen my face.” Obviously, the police learned of Simmons involvement and had him in custody the next day. Simmons confessed to the murder and even reenacted it while being video recorded. At trial, the prosecution sought to prove that Simmons’s murder “involved depravity of mind and was outrageously and wantonly vile, horrible, and inhuman.” The jury agreed and recommended the death penalty. The judge agreed. Of course, then there were the numerous appeals that go along with any death penalty case, and eventually Simmons’s case ended up before the Supreme Court.
Surely there have been more grisly, evil, and cold-blooded murders, but if Simmons isn’t worthy of execution, then I don’t want to imagine what it takes to be eligible for it. Simmons was well on his way to a fully deserved execution when the Supreme Court stepped in and essentially saved his life. As you can tell, I don’t agree with the decision, but there are a few things that I think should be pointed out.
First, I want to disspel the belief that the Court based its decision on international law. This is not true. The Court comes to the conclusion that juvenile executions are unconstitutional long before they even discuss international law. The Court followed a test established when it ruled executing mentally retarded individuals is unconstiutional (Atkins v Virginia, 2002). The test looks for a “national consensus” about the issue, which is found in State constitutions, acts of Congress, governor’s actions, etc. I want to emphasize it is by this test, which orginated on our own soil, that the Court found ground for its ruling. The discussion about international law and what other countries allow is purely dicta. It is a part of the opinion that is not essential to the decision and is meant largely for explanatory purposes. The Court would have ruled the exact same way even if the entire world allowed 5 year olds to be executed for candy theft. Personally, I could care less about what the rest of the world does, but I do get uncomfortable when the Court pointes out, ” . . . 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.” That is not a crowd in which I want to be included. When the US is a member of a small group that is mostly Communists, dictators, and theocracies, I’d seriously consider what is qualifying us for membership. The Court concludes its discussion of the international world by saying, “The opinion of the world community, while not controlling our outcome, does provide respected and significant confirmation for our own conclusions.” The bottom line is that the notion the Court used international law as a rational basis for its opinion is pure misguided spin, and it should be combatted and eliminated whenever possible. There are other reasons to attack this opinion; this false idea is not one of them.
In his dissent, Scalia says, “Though the views of our own citizens are essentially irrelevant to the Court’s decision today, the views of other countries and the so-called international community take center stage.” This is not only false, but it is an extremely uncharitable reading of the majority opinion. The majority explicitly stated that the international law was not controlling, it reached its conclusion before discussing international law, and the discussion of international law is only a sideshow of the three ring circus. However, Scalia isn’t satisfied with all of this:
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.
It seems he’s basically saying the majority opinion is lying about this. That’s not an assumption I’m willing to make. Though I think Scalia’s take on the majority opinion is overwrought, I agree with his general point. Unratified treaties, international law, and foreign customs have no place in deciding our own laws, and if I had my druthers they would only make an appearance on rare occasions. However, in Roper it was not used in deciding the case (unless you think the majority is blatantly lying).
Roper does overturn an earlier Court decision which permitted juvenile executions (Stanford v Kentucky, 1989). But the mere overturning of a previous ruling is not a good reason to attack this opinion either. As the highest court of the land, the Supreme Court sets precedents and is bound by none, not even its own. It is not uncommon for the Court to overturn itself. We don’t live with the finality of the Medes and the Persians. What is decreed one day can be retracted the next. Indeed, in a limited number of cases I think overturning previous decisions should be welcomed (e.g. Dred Scott). Considering the Court’s perogative to set and reset its own precedents, only people who already disagree with the opinion will find this argument is persuasive.
There may be an argument that the Court does not have sufficient reason to overturn the previous decision, but that’s an argument that would deal with issues far beyond my education and knowledge.
Cruel and Unusual?
A better attack might be mounted from the grounds that the Court is once again just interpreting the Constitution as it sees fit. After all, the Court itself says, ” . . . 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.” For most conservatives and strict constitutionalists the phrase “evolving standards” is sufficient to cast the opinion in a very poor light. I agree the Constitution should be strictly followed as much as possible. There should be standards that remain despite the “maturation” of our society. However, I cannot get around the fact that “cruel and unusual” seems to be some very flexible and expansive language, subject to wide interpretation. What is cruel to one person is not cruel to another. I think this has been well demonstrated by the recent problems with our “torture” of Muslim terrorists. Their religious sensibilities are so fine that what I’d consider to be a mere humiliation is something they consider to be cruel. In his concurring opinion, Justice Stevens points out that Stanford showed if we still rooted our understand of what is cruel and unusual in the time of the Framers, then even seven year olds could be executed. Personally, I find that reprehensible. So, it seems to me that the Framers happened to choose language that happens to be fairly flexible in its use, and at this time the Court has chosen to apply this to a broader area than I like.
I think the best way to attack this opinion is with the old war horse of federalism. This seems to be a question best left for the States to answer themselves like they were before Roper. Scalia develops this argument in his dissenting opinion, but, like I said before, I think he gets carried away and loses some of his persuasiveness. For example, I find his critique of how the majority found a “national consensus” to be quite weak:
Consulting States that bar the death penalty concerning the necessity of making an exception to the penalty for offenders under 18 is rather like including old-order Amishmen in a consumer-preference poll on the electric car. Of course they don’t like it, but that sheds no light whatever on the point at issue.
First, the analogy almost makes no sense to me. Second, I disagree with his contention that consulting states that bar the death penalty sheds no light on the issue in question. Of course it does. When it comes to the appropriateness of the death penalty for minors, they say no. It just so happens that they would say the same thing in all situations. I think the majority opinion can be attacked on the national consensus point but probably in a better manner than this. Orin Kerr at the Volokh Conspiracy <a href="explores one way. An interesting side note to this is that the national consensus test was used in Stanford, an opinion that Scalia himself wrote. He concluded his opinion:
We discern neither a historical nor a modern societal consensus forbidding the imposition of capital punishment on any person who murders at 16 or 17 years of age. Accordingly, we conclude that such punishment does not offend the Eighth Amendment’s prohibition against cruel and unusual punishment.
The bulk of Scalia’s dissent shows that there is ample room for serious disagreement as to the trends of a “national consensus” and the culpability of minors. In light of the situation, I think it would have been best if the Court just decided not to hear this case. Or if they did, just reiterate that this is a question already decided and is best left to individual state legislatures. Of course, the obvious rejoinder to this argument would be that the Court is doing its job because it is interpreting 8th Amendment, therefore the character of punitive measures falls within its legitimate scope. At this point, I think the argument would boil down to a disagreement about where the line is drawn between normal jurisprudence and legislating from the bench. Personally, I find this to be a rather nebulous distinction with no bright lines demarcating exactly where the point is when the courts stop judging and start legislating.
I believe Roper was wrongly decided. If capital punishment itself is not cruel and unusual, I think the Court should leave the application of it to the individual states. I think it’s obvious that there should be a baseline of when execution should not be permitted under any circumstances (e.g. children under 12), but if a state feels it’s appropriate to use capital punishment for especially heinous crimes committed by minors then I think they should have that right.
You can download the opinion here.
A collection of articles in response to Roper. In this article, Edward Lazarus likes the results of the decision but is skeptical of the legal reasoning behind it, especially the effrontery to federalism it poses.