"And what does the LORD require of you But to do justice, to love kindness, and to walk humbly with your God"
-- Micah 6:8

"The duty of the prosecutor is to seek justice, not merely to convict."
-- American Bar Association Standard 3-1.2(c)

"There may be a legitimate diversity of opinion even among Catholics about waging war and applying the death penalty, but not however with regard to abortion and euthanasia."
--Pope Benedict XVI, June 2004

Tuesday, October 04, 2005

Slippery Slope

It seems that the storied "slippery slope" is not always just a rhetorical device used to gin up opposition to a change in the law. Take for instance Roper v. Simmons. In this infamous case which invalidated a death sentence for a defendant who threw his victim off a bridge, Justice Kennedy decided that notwithstanding the continued use of the death penalty for defendants who were juveniles at the time of their crimes in several states, that "in the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment." Thus, the so-called "evolving standards of decency" are no longer discerned by what is happening in society or in the states, but is entirely a matter of what 5 Justices personally believe. So even though fewer than 50% of death penalty states could be viewed as opposing executing juveniles, Kennedy sees an evolution against the practice sufficient to thwart the majority of death penalty states who approve of the practice.

Kennedy also predicates his opposition to the death penalty in this case on the perceived "immaturity" and "vulnerability" of such offenders. Never mind that the Court hypocritically believes in its abortion jurisprudence that the same minors are deemed so mature that parental notification laws are an unconstitutional burden on their highly developed moral lives.

At any rate, the silly, feel-good, extra-legal "reasoning" of this case is now being invoked to make the point that if these minors-at-the-time-of-the-crime should not be executed, then why should they be sentenced to terms of life imprisonment? As Doug Berman frames it over at Sentencing Law and Policy,
if the Constitution now demands a categorical bar on the death penalty for crimes committed before 18 because of some offenders' "immaturity" and "vulnerability" and the general "mitigating force of youth," shouldn't these same realities and concerns come to bear in at least some non-capital sentencing cases?

If Berman's reasoning is adopted by some such majority of five, then vicious murderers, whom the state can no longer execute, will not even be removed from society for life. And why stop there? If you can't punish the little darlings by death, nor by life imprisonment, then why should the state be allowed to incarcerate them for even twenty or even ten years?

Certainly, once the sloppy reasoning of Roper is applied to its logical conclusion, the SCOTUS must ultimately tell us what so called "standards of decency" "in [their] own judgment" is constitutionally permissible for these "children." And by the way, this "reasoning" does not apply only to otherwise death penalty-eligible cases, but to any criminal offense, since the Eighth Amendment applies to all punishment in every criminal case.

If Berman's right, the SCOTUS will be a busy bunch, telling us what the maximum allowable sentence is for every crime committed by a juvenile.


Anonymous said...

Tom, I congratulate on providing a link to the case. While obviously attorneys representing your position were unable to persuade to Missouri and US Supreme Courts, the fact that you provide a link to their decision indicates that you are taking the legal discussion seriously.

I am curios to know what parts of Roper v. Simmons you consider to be “extra-legal” and what exactly “extra-legal” means. The eighth amendment contains various words which might require reference to statistical information – namely, unusual.

If you think that “unusual” is extra-legal, then I guess that I would have to put you firmly in the anti-Scalia camp. In Stanford v. Kentucky. 492 US 361, 374 (1989), Justice Scalia rejected the defendant’s statistical challenge – on the merits – and held that:

Given the undisputed fact that a far smaller percentage of capital crimes are committed by persons under 18 than over 18, the discrepancy in treatment is much less than might seem. Granted, however, that a substantial discrepancy exists, that does not establish the requisite proposition that the death sentence for offenders under 18 is categorically unacceptable to prosecutors and juries. To the contrary, it is not only possible, but overwhelmingly probable, that the very considerations which induce petitioners and their supporters to believe that death should never be imposed on offenders under 18 cause prosecutors and juries to believe that it should rarely be imposed.

So, if you quibble with analyzing the statistical argument on the merits (rather than just rejecting all statistical proofs of “unusual”) then you are firmly rejecting Scalia’s approach.

Anyway, Roper v. Simmons in the law because some people were unable to deal convince a majority otherwise.

Anonymous said...

Anyway, Roper v. Simmons in the law because some people were unable to deal convince a majority otherwise

Not a majority, but a judge or panel of judges. Thats the difference between what the people want and what liberal judges force down our throats.

Anonymous said...

Well, I never put too much stock in what “the people” want because most of the time “the people” are just repeating what lawyers – usually the ones that lost in court – are telling them to do. Of course, if I represented the state, I would have won. I don’t think Missouri was that serious about making good arguments, anyway. Instead, they relied on a bunch of amici that wrote obviously political briefs that nobody could take too seriously.

Besides, 7 of the 9 justices have been appointed by the party that caries a majority in the house and senate and the presidency, so it is difficult to see what “the people” want.

But, I have a better idea. Why do we need a written constitution. If you are so concerned with what “the people” want there is no need for any of them counter-majoritian measures in the constitution. Instead of trials that comport with the sixth amendment (which require unelected jurors) trial could be conducted in public and the entire country would get to decide who lives and who dies. This would be pretty neat, because uneducated forklift drivers would get to decide the moral value of everyone else. Likewise, there would be no need for a first amendment, as the majority could silence the minority, anyway.

Another problem is that “the people” are stupid. Most of them are completely and utterly incapable of writing one party’s argument regarding the proper interpretation of the constitution. My old firm, after losing a case, would spend days working with a PR firm that would develop a slogan for the lay people to chant. Although these slogans had noting to do with the arguments we made in our briefs, they would, I think mean “the court decided the issues incorrectly.” I once suggested that we distribute copies of our briefs to the lay people and I was soundly laughed at. (This was before everything was on the internet.)

Anyway, I like where you are going. Perhaps every American could be made to read the briefs of the parties (and 5-6 amici, of course) and then they would vote on what the constitution meant. Those that were caught not reading the briefs (or failed a reading comprehension test) would be sentenced to 20 years in jail for treason.

Anonymous said...

You are right. Lawyer should tell everybody everything. If some half ass from NYU says it is bad, so be it. How many framers of the Consitution were lawyers? I forget.....

Anonymous said...

Well, it isn’t as if we should trust TTT grads.

Anonymous said...

I prefer TTT grads--they arent as full of themselves. Ive never met anyone who went to NYU who wasnt a turd.

Anonymous said...

Right now, everyone who went to a real school is laughing! NYU? Y would U?

Anonymous said...

Do what you want. However, I would question your patriotism if you went to a TTT.

Anonymous said...

Why cant you think of the children, you NYU monster?