March 1, 2005

Justice Kennedy

The folks at The Corner have had an excellent thread running today about Justice Kennedy's opinion and Justice Scalia's dissent in Roper v. Simmons.

Beyond what one thinks of Capital Punishment (I think 72 brutal murderers are now set to be released into society and countless others will be empowered as was young Simmons who "bragged that he could get away with it because of his age.") the problem is Kennedy's capitulation to international treaties and opinion. He cites two treaties. One hasn't even been ratified by the USA and the other makes specific mention that it may be limited by its constitutionality.

The folks at Amnesty International are very pleased, as was the AP "news" "reporter" who wrote the wire story

WASHINGTON - A closely divided Supreme Court ruled Tuesday that it's unconstitutional to execute juvenile killers, ending a practice in 19 states that has been roundly condemned by many of America's closest allies.

I would posit that a true ally would be supportive of a country's sovereignty.

Politics Posted by John Kranz at March 1, 2005 1:35 PM

Thanks for the link to the discussion on NR. There I also followed a link to Kennedy's opinion and read about half of it. I support the death penalty and have no compunction with applying it to 16 and 17 year olds. But I found all of the arguments I read in Kennedy's opinion at least arguable, even if I disagreed with his conclusion.

Here's my first objection though - the final order of the opinion states: "The Eighth and Fourteenth Amendments forbid imposition of the death penalty on offenders who were under the age of 18 when their crimes were committed. The judgment of the Missouri Supreme Court setting aside the sentence of death imposed upon Christopher Simmons is affirmed. It is so ordered."

The first sentence here is factually erroneous. The court INTERPRETED that the 8th amendment, coupled with societal norms, is the basis for this ruling. The phrasing of the ruling is imprecise and overreaching. This is important as it will be the basis for citation in future cases.

And then we have the law of Unintended Consequences. Will a police officer be more likely to use deadly force against juvenile criminals, given his knowledge that said juveniles lack the death-penalty deterrent from killing him? We can also naturally expect the juvenile homicide rate to increase with this elimination of the deterrent. A deterrent that the court argued is ineffective and therefore should be considered cruel.

On the bright side, this reduction in cases where the penalty may be imposed should logically lead to less ambiguity in its application to the "truly heinous" criminals. But I'm not holding my breath.

Posted by: johngalt at March 1, 2005 2:52 PM

I still have a tough time with a justice quoting international law as precedent for a SCOTUS opinion. Justice O'Connor did this last session drawing jeers from my crowd. (O'Connor's dissent makes sense to me in this case, mirabile dictu.)

Posted by: jk at March 1, 2005 4:13 PM | What do you think? [2]