Comments: Justice Kennedy

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