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!

2 comments:

Drew said...

Thanks for the link and the comments. Kennedy has frequently been a surprisingly strong voice for the core constitutional principles of the 1st Amendment and more recently Due Process Liberty.

I don't love him, but I really like some of his opinions.

MadProfessah said...

Thanks for your comment on my blog and your excellent posting on your own blog about this important topic. I agree with you that Kennedy is definitely "growing" during his tenure on the Court. Any speculation about his CJ potential?