U.S. Finally Outlaws Execution of
Children
By Marjorie
Cohn
t r u t h o u t | Perspective
Thursday 03 March 2005
Today, the Court repudiated the misguided idea that
the United States can pledge to leave no child behind while
simultaneously exiling children to the death chamber.
Dr.
William F. Schulz, Executive Director, Amnesty
International
Until March 1, 2005, the United States was
the only nation in the world that permitted the execution of children
under age 18. Only seven countries besides the U.S. have executed
juvenile offenders since 1990: Iran, Pakistan, Saudi Arabia, Yemen,
Nigeria, the Democratic Republic of Congo, and China. Since then, each
of these countries has either abolished capital punishment for juveniles
or made public disavowal of the practice. With the Supreme Court's
monumental ruling in Roper v. Simmons, the United States has
finally joined the community of nations that says the state-sanctioned
execution of children is wrong.
Christopher Simmons was a 17-year-old junior
in high school when he and a friend burglarized Shirley Crook's home.
When Simmons realized Mrs. Crook had recognized him, he and his friend
tied her up, and threw her off a bridge to her death. Simmons, who had
never even been arrested before, was described by clinical psychologists
who evaluated him as "very immature," "very impulsive," and "very
susceptible to being manipulated or influenced." Nevertheless, a
Missouri jury sentenced Simmons to death.
The Supreme Court concluded in a 5-4 decision
that executing children who were not yet 18 at the time of their crimes
constitutes cruel and unusual punishment. "By protecting even those
convicted of heinous crimes," Justice Anthony Kennedy wrote for the
majority, "the Eighth Amendment reaffirms the duty of the government to
respect the dignity of all persons."
In determining which punishments are so
disproportionate as to be cruel and unusual, the Court considers "the
evolving standards of decency that mark the progress of a maturing
society," a test set forth in the 1958 case of Trop v. Dulles.
The Court had prohibited the execution of
15-year-old offenders in Thompson v. Oklahoma in 1988, but the
following year, it upheld the execution of 16- and 17-year-olds in
Stanford v. Kentucky. The same day it decided
Stanford, the Court also refused to mandate a categorical
exemption from the death penalty for the mentally retarded in Penry
v. Lynaugh.
Three years ago, the Court overruled
Penry, and held in Atkins v. Virginia that the
standards of decency that had evolved in the intervening 13 years
demonstrated the execution of the mentally retarded is cruel and unusual
punishment. In so ruling, the Court found a national consensus against
capital punishment for the mentally retarded because by 2002, 30 States
prohibited it. The Atkins Court also resolved that the
impairments of the retarded make it less defensible to impose the death
penalty as retribution for past crimes, and less likely that the death
penalty will have a real deterrent effect.
Kennedy used the same reasoning in
Simmons to find a national consensus against the execution of
juveniles under 18. Thirty states now prohibit the juvenile death
penalty. That number includes the 12 states that have rejected the death
penalty altogether, and 18 that maintain it but expressly exclude
juveniles from its reach. The consistent trend, wrote Kennedy, has been
toward abolition of the juvenile death penalty.
The International Covenant on Civil and
Political Rights (ICCPR) is a treaty ratified by the United States and
part of our domestic law under the Supremacy Clause of the Constitution.
When the Senate ratified the ICCPR in 1992, it did so subject to a
reservation to Article 6(5) of that treaty, which prohibits capital
punishment for juveniles.
When Congress enacted the Federal Death
Penalty Act in 1994, however, it determined that the death penalty
should not extend to juveniles. Kennedy cited that law, as well as the
infrequency of the use of capital punishment for juveniles, as further
evidence that a national consensus has developed against the juvenile
death penalty, notwithstanding the reservation to the ICCPR two years
earlier.
Kennedy also took notice of scientific and
sociological studies that confirm three general differences between
juveniles under 18 and adults, demonstrating that juvenile offenders
cannot with reliability be classified among the worst offenders,
deserving of the death penalty.
First, youths display a "lack of maturity and
an underdeveloped sense of responsibility" that "often result in
impetuous and ill-considered actions and decisions." For that reason,
wrote Kennedy, almost every State prohibits those under 18 years of age
from voting, serving on juries, or marrying without parental
consent.
Second, juveniles are more vulnerable or
susceptible to negative influences and peer pressure, and, "lack the
freedom that adults have to extricate themselves from a criminogenic
setting."
Third, the character of a juvenile is not as
well-formed as that of an adult.
"From a moral standpoint it would be
misguided to equate the failings of a minor with those of an adult, for
a greater possibility exists that a minor's character deficiencies will
be reformed," wrote Kennedy.
Thus, the Court held: "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."
One of the most notable aspects of its
decision in Simmons is the Court's reference to the law of
nations. "Our determination that the death penalty is disproportionate
punishment for offenders under 18," Kennedy wrote, "finds confirmation
in the stark reality that the United States is the only country in the
world that continues to give official sanction to the juvenile death
penalty."
The Court cited the United Nations Convention
on the Rights of the Child, which every country in the world except the
United States and Somalia has ratified. Article 37 contains an express
prohibition on capital punishment for crimes committed by juveniles
under 18. What Kennedy failed to mention, however, is that the United
States has signed that treaty. Under the Vienna Convention on the Law of
Treaties, a country that signs a treaty is forbidden from taking action
inconsistent with the object and purpose of the treaty.
Justice Antonin Scalia wrote a dissenting
opinion joined by the Chief Justice and Justice Clarence Thomas. Scalia,
who fashions himself an "originalist," interprets the Constitution the
way he thinks it would have been interpreted in 1791, when the Bill of
Rights was adopted.
When Scalia spoke at Thomas Jefferson School
of Law a few years ago, he chided the "evolutionists" on the Court, who
would likely agree with Justice Thurgood Marshall's words: "I do not
believe that the meaning of the Constitution was forever fixed at the
Philadelphia convention. The true miracle was not the birth of the
Constitution, but its life, a life nurtured through two turbulent
centuries of our own making."
In his Simmons dissent, Scalia,
still stuck in 1791, characteristically mocked the well-settled doctrine
that the ban on cruel and unusual punishment should be analyzed in light
of "the evolving standards of decency that reflect a maturing society."
Yet, Scalia noted: "At the time the Eighth Amendment was adopted, the
death penalty could theoretically be imposed for the crime of a
7-year-old."
Scalia disagreed with the majority's analysis
of a "national consensus" against the execution of 16- and 17-year-olds
because he omitted the 12 States that have outlawed the death penalty
altogether from the total number of States that have shunned the
juvenile death penalty. Instead of a total of 30 States found by the
majority, Scalia counted only 18, less than 50% of the 50 States.
The majority's reference to international law
drew perhaps the strongest rebuke from Scalia, who has never hidden his
contempt for the law of nations. "Though the views of our own citizens
are essentially irrelevant to the Court's decision today, the views of
other countries and the so-called international community take
center stage," he wrote. Indeed, in a D.C. Circuit Court of Appeals
decision Scalia authored as a judge on that court in 1985, he scornfully
referred to "the law of nations - the so-called 'customary
international law.'" Scalia disregards well-settled case law and the
Restatement of the Foreign Relations Law of the United States, which
both recognize customary international law as part of our federal
law.
Scalia eschews international contempt for the
execution of juveniles in the United States. He also overlooks the
refusal of European countries, all of which have abolished the death
penalty, to turn over prisoners suspected of terrorism to the United
States for fear they will be executed. And, Scalia apparently ignores
the disgust felt throughout the world for the torture committed by U.S.
forces in Iraq, Afghanistan and Guantánamo Bay.
As a result of Roper v. Simmons, the
lives of 72 people who had not attained age 18 when they committed their
crimes will be saved. Forty percent of them were sentenced to death in
Bush's home state. A study in Texas found that the current capital
punishment system is an outgrowth of the "legacy of slavery."
The Supreme Court fortuitously issued its
landmark juvenile death penalty decision on the National Day for the
Abolition of the Death Penalty, which falls each year on March 1. By
outlawing the death penalty for the mentally retarded, and now for
juveniles under 18, the Court may be taking small steps toward the
eventual abolition of capital punishment.
With ever-increasing numbers of death row
inmates being exonerated, public sentiment favoring the death penalty is
waning. The Marquis de Lafayette said nearly 200 years ago, "I shall ask
for the abolition of the punishment of death until I have the
infallibility of human judgment demonstrated to me."
We can hope that one day soon, the United
States, which remains the only Western democracy that still sanctions
capital punishment, will abolish it. As Supreme Court Justice Arthur J.
Goldberg wrote in 1976: "The deliberate institutionalized taking of
human life by the state is the greatest conceivable degradation to the
dignity of the human personality."
Marjorie Cohn, a
contributing editor to t r u t h o u t, is a professor at Thomas
Jefferson School of Law, executive vice president of the National
Lawyers Guild, and the U.S. representative to the executive committee of
the American Association of Jurists.
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