Supreme Court Justice Anthony Kennedy, speaking for himself and fellow Justices Stephen Breyer, Ruth Bader Ginsburg, David Souter and John Paul Stevens, on March 1 cited Simmons’ age and immaturity among the reasons for a five-to-four decision by the Court to strike down the death penalty for persons under age 18 when they committed their crimes.
Simmons, it has been noted, bragged about his actions before and after he committed his crimes. To Justice Kennedy, however, teenagers are less culpable for their actions than adults. He cited scientific research on teenagers’ development and added that “any parent knows” that juvenile offenders are less mature than adults and are more susceptible to peer pressure. “These differences render suspect any conclusion that a juvenile falls among the worst offenders,” Kennedy wrote.
From where we’re sitting, a 17-year-old who could plan a break-in, an assault, and an abduction had to be very much aware that throwing a bound, gagged and blindfolded woman off a bridge into a river could have only one result for the victim. Simmons’ actions have more than earned him a place among “the worst offenders.” And while among the 70 or so individuals across the country affected by the Court’s ruling are some who, we are certain, feel regret and remorse for their deeds, there are equally surely others who did not feel any such emotions at the time they committed their crimes and who do not now. Simple logic tells us that one standard cannot be applied to all cases. They must, for the sake of justice, be considered individually. One size does not fit all.
The Court majority opinion also cites a “national consensus” for staying executions of juveniles. We’d like to know where Mister Justice Kennedy learned his math. Currently, 38 states have a death penalty on their statute books. Of those 38, 18, slightly over half, ban executions of juveniles. Eighteen states out of 38 with a death penalty, and 50 states in all, cannot be said to constitute a “national consensus” by anyone’s calculations. More importantly, where in the Constitution is it stated that the role of a Supreme Court Justice includes measuring any national consensus?
We’d also like to know where Kennedy learned Constitutional law. The Eighth Amendment to the Constitution forbids cruel and unusual punishment. Determining what constitutes “cruel and unusual” is among the reasons the Supreme Court exists. A law enacted by a state legislature to execute criminals in the same way Christopher Simmons murdered his neighbor would properly be subject to Supreme Court review. However, the duly elected legislatures of those 38 states in which a person who commits a capital crime is susceptible to the ultimate punishment have enacted death penalty statutes because it was their legal and moral right and responsibility to do so under the Constitution of the United States. No court has the right to arbitrarily set those laws aside.
Even more disturbing is Kennedy’s invoking international consensus against executing juveniles as among the reasons for the ruling. Kennedy said it was necessary and relevant to recognize that the United States “now stands alone in a world that has turned its face against the juvenile death penalty.” Kennedy held it was proper for the Court to refer to international legal trends as “respected and significant confirmation” of the Court's judgments.
“To invoke alien law when it agrees with one's thinking and ignore it otherwise is not reasoned decision making, but sophistry,” Justice Antonin Scalia said in a dissent in which Justices Clarence Thomas and William Rehnquist joined. (Justice Sandra Day O’Connor issued a separate dissenting opinion.) “Either America’s principles are its own or they follow the world; one cannot have it both ways.”
Justice Scalia is right. We fought a war of independence for, among other things, the right to determine both what constitutes a crime and what is just and reasonable punishment. To allow the rest of the world to impose its standards on this country, in fact, refutes the Monroe Doctrine of 1823, in which then President James Monroe told the European powers that the Americas were no longer open to colonization. Monroe meant more than one country physically colonizing territory, of course; he also meant colonization by ideas inimical to the principles on which the United States and the other free nations of the western hemisphere were founded. If the legal execution after due process of law has been exercised of a person who commits murder before reaching his or her 18th birthday renders the United States out of step with the world community, so be it. We’ve been marching to our own drummer for more than 225 years now, and we still seem to be headed in the right direction, an occasional detour notwithstanding.