Creeping forward on Capital Punishment

The Supreme Court ruled 5-4 on Tuesday that the death penalty "is a disproportionate punishment for juveniles," and thus it violates the Eighth Amendment to impose a death sentence on a youthful murderer who committed the crime before age 18. Today, the Court said, "society views juveniles as categorically less culpable than the average criminal."

While conceding that drawing the line against capital punishment at age 18 might be debatable, the Court said: "The age of 18 is the point where society draws the line for many purposes between childhood and adulthood. It is, we conclude, the age at which the line for death eligibility ought to rest."

Justice Anthony M. Kennedy announced the decision in Roper v. Simmons (docket 03-633). The case involved a Missourian, Christopher Simmons, who was 17 at the time of a crime that led to a death sentence.

"The differences between juvenile and adult offenders are too marked and well understood to risk allowing a youthful person to receive the death penalty despite insufficient culpability," Kennedy wrote. "When a juvenile offender 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."

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A spate of comments and links at the end of this post illustrates how deeply unpopular this decision is. The arguments for and against the death penalty are every bit as passionate as any debate, showing extreme views on both sides. Looking at the extremes is instructive in this case. The simple result of applying the death penalty is that the perpetrator's life has ended and, in words that cannot be refuted "at least one identifiable individual is deterred from any further criminal activity." At the other extreme, without capital punishment the state becomes responsible for the protection of its citizens from further harm by the perpetrator as long as the perpetrator remains alive.

I am but one citizen who has faced many potential dangers in my life. Perhaps the hand of God has been protecting me, but nothing in my personal experience has convinced me that executing a child instead of controling his or her behavior is anything that I want to be part of as a citizen. The notion strikes me, as in the case of abortion, as morally abhorent. Again, I find myself in a minority.

Thanks to Deborah White for mentioning this important decision.

"Now, the US can proudly remove its name from the embarrassing list of human rights violators that includes China, Iran, and Pakistan - nations that still execute juvenile offenders. It can take pride in knowing that it is now in the company of the honorable nations that abandoned this antiquated practice years ago." - Dr. William F. Schulz, Executive Director of Amnesty International USA

The arguments in favor of the death penalty in general, and the application of the death penalty to minors specifically, are rhetorically poweerful. As in the case of most discussions, any time there is tension between matters of morality and matters of law, those arguing for morality are doomed. Rhetoric and logic, applied properly, will invariably decide against moral arguments because in the end, morality rests on faith.

Faith, by definition, is what Twain defined as "believing what you know ain't true." The inner man struggles with that eternal pull of heart against mind. In that struggle, there will always be tension. As St. Paul said, "rarely will anyone die for a righteous person - though perhaps for a good person someone might actually dare to die." (Romans 5:7) The logic is easy to grasp. Paul is building the case that Christ's sacrifice was irrational according to human understanding. Many of God's actions do not pass man's logic test, but that in no way undermines their Divine origin.

It is my habit to examine which of my behaviors and beliefs is governed by moral considerations and which are, as far as I can understand (I am, after all, human), simply arbitrary. When to cut the grass or whether or not to wear a jacket are not moral decisions. Same is true for most of life's decisions. Do I finish the salad before a get to the entree or should I finish the tomato first? But there are moments when the moral weight of decisions and actions clearly outweigh all other considerations. Capital punishment is such an issue. I have to ask myself which side of the debate is on the side of the angels.

Sebastian Holsclaw argues with the logic of a steel trap. It is only fair to present his discussion of this decision, even though I stubbornly refuse to allow it to alter my heart. He cites Orin Kerr (one of the Volokh conspirators and another brilliant legal mind), in a powerful legal argument.