Tuesday, 15 March 2005


Sometimes we achieve the impossible sooner than we expect. Knowing that can stiffen our resolve. But it can also tempt us to place too much emphasis on outcomes; it can cause us to become unduly impatient, brittle, setbacks easily breaking our will. A deeper, more farseeing hope, by contrast, combines realism with resilience, acknowledging terror and suffering without giving in to them.

There is even a kind of hope beyond hope, which happens only when we're willing to act whether or not we ever see results. By letting go of impatient hope we can keep on no matter how hard it gets. Tangible victories matter; if we're facing a critical election, for instance, we need to do everything possible to ensure that humane values prevail. Yet we won't always win, so we need ways to persist no matter what the outcome. The more we accept that we can't control all the results of our actions, the more we free ourselves to keep doing the work that seems most necessary.

Paul Loeb
"Beyond Hope" from an introduction to a group of essays in
The Impossible Will Take a Little While

Saturday, 5 March 2005

More on Youthful Criminals

My previous post on the Supreme Court decision was also posted on WatchBlog, where it predictably drew a fair amount of comment from those who see the enormity of some of the crimes committed by juveniles as a reason to make an exception to their exemption from the death penalty.

The very first comment from Rocky was typical:
I couldn't disagree with you more. There are crimes that are so heinous that the death penalty cannot be taken off the table.

It obviously should be used sparingly, and I don't know at what age the cutoff point should be, but to drop the death penalty alltogether is unconscionable.

The discussion moved more toward the capacity for youth to understand fully the ramifications of their crime, with one 16-year-old, Leon, taking strenuous exception to exempting youth from responsibility.

I wasn't surprised to find that this issue doesn't divide people neatly along liberal or conservative lines, as Leon is a self-described liberal, whereas Jack, one of the most capable conservative voices over at WatchBlog came out in favor of the Supreme Court ruling, noting among other things that the factor of deterrence is least likely to have sway over rashful young offenders.

More recently someone commenting as K offered this:
There seems to be a lot of discussion pertaining to what a child "knows" to be "wrong" and an adult "knows" to be "wrong". These words can mean a great many things, but I think what we should mean by "wrong", is "immoral" in the sense of critical, rational morality. And I think many of us would question a teenager's ability to understand critical morality. However, I think the death penalty proponents mean "wrong" in the sense of "forbidden". Clearly, a child knows what is forbidden and what is not, as does a teenager, but it is doubtful, in my view, that either of them really understands WHY a great many things are forbidden, which is the real issue. Ultimately, understanding wrongness hinges upon the understanding of another person's pain, which is usually the underpinning for any sort of critical morality.

To which I responded:

Thanks K for some philosophical perspective.

Because I'm certain those who have argued for greater responsibility for youth will take exception to your assertion that a teenager does not yet understand WHY something is wrong, or have the ability to understand critical morality, I would refine your distinction. Let's all agree that between childhood and adulthood humans develop (or should develop) that critical morality which you speak of. Leon is quite certain at age 16 for instance that he CAN empathize with others and rationally understand the moral consequences of his actions. But he is continuing to mature in that regard, and cannot know at age 16 what his moral understanding will be in his mid-twenties. I would posit, for instance, that the angry retributive language that he used to describe what should happen to the worst offenders will likely be tempered by that time. In fact such a response is indicative of the rashness of youth which was referred to in the opinion. Leon's rashness will not manifest in barbarous acts against innocent victims because he is in fact much more mature morally and rationally (and likely the beneficiary of a much better upbringing - though I cannot know that) than the troubled youth who have committed awful crimes.

The court acknowledges in the ruling that drawing any age line is subject to arbitrariness, but 18 is the age "where society draws the line for many purposes between childhood and adulthood and the age at which the line for death eligibility ought to rest."

We all agree that an 8-year-old should not be put to death, and a line should be drawn somewhere. I believe that the line should be drawn nationally and not left to the whims of individual state legislatures which are subject to the political pressures of the day.

Another sentence from the ruling which was a bit difficult to parse, but which is important is:
An unacceptable likelihood exists that the brutality or cold-blooded nature of any particular crime would overpower mitigating arguments based on youth as a matter of course, even where the juvenile offender's objective immaturity, vulnerability, and lack of true depravity should require a sentence less severe than death.

In other words the court felt that it was too likely that a jury would be too overpowered by the terrible brutality of a crime to properly account for the mitigating factors of youth. To me the discussion here proves that point.

I'm not saying these kids aren't bad, but there is a significant difference between their rashness and meanness and that of someone who has hardened that into adulthood. The awfulness of their crime tells us nothing of their fitness to be tried as an adult and sentenced to death. If 1000 teens commit heinous crimes over a 10 year period and 50 are put to death, I have no confidence that juries will have picked the "right 50" given the sensationalism of these cases. Simply put we are better off removing the option from the table. As Jack stated youthful offenders are the least likely to be deterred by what is arguably a meager threat of a death penalty.

People who do heinous things are sometimes redeemed, such as the author of the hymn Amazing Grace, and as a society it speaks ill of us if we give up on the possibility of redemption for such youthful offenders. For that reason I personally would take life imprisonment off the table as a possibility for minors, but that will have to wait a few decades before we mature as a society to understand that as well.

Thursday, 3 March 2005

Proportionality is the Point

Thanks to Justice Anthony Kennedy for his role in bending the arc of the moral universe toward justice.

... and the Court's own determination in the exercise of its independent judgment, demonstrate that the death penalty is a disproportionate punishment for juveniles.

Significantly, Kennedy was chosen to write for the majority in the recent 5-4 Supreme Court decision which had the immediate effect of removing 72 individuals from death row who were convicted of crimes they committed when they were 16 or 17 years old. Kennedy had cast a deciding vote for the opposite position 16 years ago, which resulted in a 5-4 decision to retain executions of that same class of juvenile offenders.

While a lot of focus has been on the international trend away from allowing the death penalty in general, and for younger offenders even more broadly, the point of changing this isn't that times have changed, but that it's the right thing to do.

Drew Eldredge-Martin posts additional evidence that Kennedy's personal moral arc is swinging toward compassion, as has been a pattern for at least forty and possibly more years on the court if one follows individual careers. It makes sense to me that individuals, who persistently confront as part of their life work so many heady issues of great moral significance, would naturally as they gain wisdom and insight in that process move toward less doctrinal and more humane stances. It may be too much to hope for such a transition in the future of Justices Scalia or Thomas, but one can never know for sure.

By all means we should also thank Justice Stevens who voted for the moral position in both decisions, as well as Justices Souter, Ginsberg, and Breyer of the current court and the now deceased Justices Blackmun, Marshall, and Brennan of the 1989 court.

This court ruling, hereafter known as Roper v Simmons 2005, had three pieces to it: the first a constitutional one relating its relevancy to the Eighth Amendment; the third related to the movement of international opinion; but the meat of the decision for me is the second part of the ruling:
Rejection of the imposition of the death penalty on juvenile offenders under 18 is required by the Eighth Amendment. Capital punishment must be limited to those offenders who commit "a narrow category of the most serious crimes" and whose extreme culpability makes them "the most deserving of execution." (Atkins, 536 U. S. at 319). Three general differences between juveniles under 18 and adults demonstrate that juvenile offenders cannot with reliability be classified among the worst offenders. Juveniles' susceptibility to immature and irresponsible behavior means "their irresponsible conduct is not as morally reprehensible as that of an adult." (Thompson v. Oklahoma, 487 U. S. 815, 835). Their own vulnerability and comparative lack of control over their immediate surroundings mean juveniles have a greater claim than adults to be forgiven for failing to escape negative influences in their whole environment. (See Stanford, supra, at 395). The reality that juveniles still struggle to define their identity means it is less supportable to conclude that even a heinous crime committed by a juvenile is evidence of irretrievably depraved character. The Thompson plurality recognized the import of these characteristics with respect to juveniles under 16. (487 U. S., at 833-838). The same reasoning applies to all juvenile offenders under 18. Once juveniles' diminished culpability is recognized, it is evident that neither of the two penological justifications for the death penalty--retribution and deterrence of capital crimes by prospective offenders, (e.g., Atkins, 536 U. S., at 319)--provides adequate justification for imposing that penalty on juveniles. Although the Court cannot deny or overlook the brutal crimes too many juvenile offenders have committed, it disagrees with petitioner's contention that, given the Court's own insistence on individualized consideration in capital sentencing, it is arbitrary and unnecessary to adopt a categorical rule barring imposition of the death penalty on an offender under 18. An unacceptable likelihood exists that the brutality or cold-blooded nature of any particular crime would overpower mitigating arguments based on youth as a matter of course, even where the juvenile offender's objective immaturity, vulnerability, and lack of true depravity should require a sentence less severe than death. When a juvenile commits a heinous crime, the State can exact forfeiture of some of the most basic liberties, but the State cannot extinguish his life and his potential to attain a mature understanding of his own humanity. While drawing the line at 18 is subject to the objections always raised against categorical rules, that is the point where society draws the line for many purposes between childhood and adulthood and the age at which the line for death eligibility ought to rest.
Proportionality is the point!

Wednesday, 2 March 2005

Too Conservative Even for Kansas

It is encouraging to note, that even in Topeka it is possible for an anti-gay initiative to be defeated. Even some who voted for it made a point to distance themselves from Fred Phelps, the extremist minister behind it. I read the whole article, but found no explanation for the eyebrow raising photo that went along with it. The caption identified the woman, but not what her sign meant to her. Scary!