Roper v. Simmons - Activist Judges and the Juvenile Death Penalty's Demise
Capital Punishment is not given lightly. Juries must carefully examine the facts of a case, as well as facets of a perpetrator's character. Previously, juries could take a criminal's age into account when deciding upon the death penalty. However, the 5-4 Supreme Court decision in Roper v. Simmons now prevents anyone under the age of 18 from being executed. This far-reaching decision brings up questions about the role of so-called "activist" courts in the policymaking process.
Christopher Simmons, seven months shy of his 18th birthday, planned and implemented the murder of an innocent woman. Descriptions of the murder are thoroughly chilling - reports show that Simmons and an accomplice bound the woman in tape and dropped her off a bridge, drowning her in the waters below. Simmons later confessed to the crime and even participated in a videotaped reenactment of it. If he had been an adult at the time of the murder, Simmons' case would not raise any constitutional questions. But due to his age, the issue before the court was whether the Eighth and Fourteenth Amendments allowed the United States to "execute a juvenile offender who was older then 15 but younger than 18 when he committed a capital crime." Justice Kennedy delivered the Court's opinions, affirming the previous ruling in the Missouri Supreme Court. As a result, Simmons could not be considered for the death penalty due to his age, and his sentence remained at life in prison without parole.
It is the Court's reasoning that makes this case controversial. Justice Kennedy explains that due to "evolving standards of decency" since the ruling in Stanford v. Kentucky (1989), the Court has grounds to rule against the juvenile death penalty. In the Stanford ruling, the Court held that juveniles under the age of 15 could not be executed due to "views that have been expressed by respected professional organizations," and "leading members of the Western European community." The Court later ruled in Atkins v. Virginia (2002) that mentally retarded persons were exempt from the death penalty as well, a further sign of society's changing standards. The decision in Atkins explained that due to their impairments, "it is highly unlikely that such offenders could ever deserve capital punishment." The reasoning in Atkins is applied to the Simmons decision. Kennedy argues that because individuals under 18 are "categorically less culpable than the average criminal", they should not deserve the death penalty. Kennedy adds that there are three differences between juveniles under 18 and adult offenders. First, juveniles often lack the maturity found in adults, a trait that is "understandable among the young," and that "adolescents are overrepresented statistically in virtually every category of reckless behavior." The second difference is that they are more vulnerable to "negative influences or outside pressures," which could lead to deviant behavior. Finally, Kennedy asserts that "the character of a juvenile is not as well formed" as an adult and that personality traits in adolescents are "transitory." Because of the "comparative immaturity and irresponsibility" of such people, Kennedy logically notes that nearly every State bars people under 18 from voting, serving on juries or marrying without parental consent. If this is the case, they should also be exempt from the death penalty, since juveniles "have a greater claim than adults to be forgiven" of circumstances that can lead to crime and deviant behavior.
Justice Stevens agreed with the majority opinion, but felt compelled to note that because "our understanding of the Constitution does change from time to time," the Court could rightly examine the change in standards to interpret the Eighth Amendment. Yet Justices O'Connor and Scalia felt that there were obvious problems with the Court's blanket ruling. They were especially concerned that the Court felt a "national consensus" against the juvenile death penalty existed. According to Justice Kennedy, 30 states now prohibit the juvenile death penalty - 12 that have eliminated capital punishment altogether and 18 that "exclude juveniles from its reach." Yet Justice Scalia blasts this argument, noting that none of the Court's previous cases that dealt with "alleged constitutional limitation upon the death penalty has counted states . . . that have eliminated the death penalty entirely." Scalia rightly points out that this form of counting is like "including old-order Amishmen in a consumer-preference poll on the electric car." Naturally they will be opposed to the idea, but this doesn't shed new insight on the problem. Justice O'Connor adds that the "halting pace of change" in this situation is far different from the "extraordinary wave of legislative action" that preceded the court's ruling in Atkins. This gives the dissenters "reason to pause," because the national sentiment does not seem as concrete as Justice Kennedy asserts.
The dissenting opinions also focused on the Court's reasoning that juveniles are "categorically less culpable than the average criminal." Both Justices disagree with this reasoning, and Justice O'Connor points out that though a 17 year old murderer is normally less responsible than an adult, does not mean he could be "sufficiently culpable to merit the death penalty." O'Connor points out that Simmons bragged he could "get away with [murder]" because of his age, a sign that he was not deterred by the idea of capital punishment. The fact that every detail was planned in advance explains how Simmons possesses "a consciousness materially more depraved than that of the average murderer." Justice Scalia cites an amicus brief by the American Psychological Association, which argued that adolescents possessed effective skills in "reasoning about moral dilemmas" and "understanding social rules and laws," and could make decisions like having an abortion without parental approval. Surely, if juveniles are mature enough to decide on an abortion, they can be mature enough to commit murder. Furthermore, Scalia discusses the amici briefs from several states that describe "additional examples of murders committed by individuals under 18 that involve truly monstrous acts." While juvenile executions are rare, Justices O'Connor and Scalia believe that it was a mistake to ban them completely. In their mind, not only are some adolescents capable of heinous acts, they should be punished accordingly.
The dissenters' final gripe against the Court lies in the use of international law to help base its opinion. Justice Kennedy explains that save the United States and Somalia, the international community follows "Article 37 of the UN Convention on the Rights of the Child", which contains an "express prohibition on capital punishment for crimes committed by juveniles under 18." In addition, he notes that the United States is one of seven other countries that have executed juveniles since 1990, a list that contains Iran, Saudi Arabia and China. By lumping America along with some of the worst human rights offenders, Kennedy attempts to justify why banning the juvenile death penalty is necessary. While Justice O'Connor agrees with Kennedy on deference to international law, Justice Scalia believes this opinion is nothing short of judicial activism. While the use of international law can be helpful by seeing parallels with other countries, it should only be applied when a true "national consensus" occurs. In this particular situation, with the so-called consensus tenuous at best, judges should be careful before they look beyond our borders for legal comparisons. Scalia rightly points out that the Court seems to review international law only when it suits them. Unlike the United Kingdom (whose laws Kennedy also cites in his opinion), issues on separation of church and state, double jeopardy, and right to jury trial are "unique to American jurisprudence." In other words, many freedoms taken for granted in the United States are different in other countries, and the Court should not simply pick and choose how America should "conform to the laws of the rest of the world." Though the Court has not given itself the power to sign international treaties as Scalia suggests, it does go against Alexander Hamilton's expectations that it should have "neither force nor will, but merely judgment." By agreeing with international law without finding a direct consensus, the Court "proclaims itself the sole arbiter of our Nation's moral standards." This judicial activism, while well intentioned, "pre-empts the democratic debate through which genuine consensus might develop." Justices Scalia and O'Connor rightly employed judicial restraint by insisting the Court find a clear consensus before making a decision that could alter an aspect of American society.
Since its inception, the Supreme Court has been forced to make difficult moral decisions. Roper v. Simmons is no exception. Even Justice O'Connor admits that if she were a legislator she would support a ban on juvenile executions. But since she is a Supreme Court Justice, she believes that the legal reasoning for a total ban is unsound. The question revolves around whether "activist courts" should impose their subjective views on a case. It would seem the Court did in this case, and the dissenters rightly reject the majority opinion. Drawing a "bright line" that separates adults from juveniles in the cases of heinous crimes seems illogical. Yet despite this, Justice Kennedy does mention that "the age of 18 is the point where society draws the line for many purposes between childhood and adulthood" and that arguably, it should be where "the age for which death eligibility ought to rest." In this case, the Court follows pubic opinion to base its decision. Though denounced by the dissenting judges, "judicial activism," occasionally brings about landmark decisions like Brown v. Board of Education (1954), and thus enormous positive change for America. However, in this particular situation, the majority failed to find a proper national consensus that would make the ban excusable. Lacking sufficient data to justify the decision, the Court allows lower state courts to overrule them, a decision that Justices O'Connor and Scalia were particularly annoyed with. Due to the Missouri Supreme Court's "unabashed refusal to follow our controlling decision in Stanford," this may "invite frequent and disruptive reassessments" of the Court's rulings. This is a danger to America's judicial system, and should be dealt with immediately. Judicial activism should be done with respect to public opinion and international thought, not on ideological preferences.
1,676 words / 6 pages
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