Tuesday, March 01, 2005


It’s funny how you come to expect these “sharp divide” 5-4 decisions in these sure to be contorversial Supreme Court rulings, holding your breath in hopes that Kennedy or O’Conner made the right decision and sided with Stevens, Souter, Ginsberg and Breyer rather than with the dark forces of Rehnquist, Scalia and Thomas. This time it was Kennedy who joined the good wizards and who also wrote the majority opinion. He wrote:

A majority of states have rejected the imposition of the death penalty on juvenile offenders under 18, and we now hold this is required by the Eighth Amendment.

Also of interest and applause were Kennedy and the majority’s look at international standards in regards to the issue of juveniles and the death penalty. He writes:

Our determination that the death penalty is disproportionate punishment for offenders under 18 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.

In fact, as he goes on the mention, the only other countries to execute juveniles since 1990 besides the United States hardly made for good company: Iran, Pakistan, Saudi Arabia, Yemen, Nigeria, Democratic Republic of Congo and China, all of whom, since 1990, have “either abolished capital punishment for juveniles or made public disavowal of their practice.”

Charles Lane of the Washington Post writes more about the relevance of international law:

For the Supreme Court itself, perhaps the most significant effect of today's decision is to reaffirm the relevance of international law to its interpretation of the U.S. Constitution.

The European Union, human right lawyers from the United Kingdom and a group of former Nobel Peace Prize winners had urged the court in friend-of-the-court briefs to strike down the juvenile death penalty.

In saying that this strong expression of international sentiment "provide[s] respected and significant confirmation for our own conclusions," Kennedy lengthened the recent string of decisions in which the court has incorporated foreign views -- and decisively rejected the arguments of those on the court, led by Justice Antonin Scalia, who say the court should consider U.S. law exclusively.

Nice to see, especially in light of Ashcroft and Gonzalez’s recent and deplorable excusing of the President’s obligations to international law.

It’s worth reading or skimming all of Kennedy’s majority opinion, which delves into all sorts of fascinating and thought provocative issues like constitutional interpretation (how is something with such expansive language as “cruel and unusual punishment,” to be interpreted?), and the necessity in this case of “referring to ‘the evolving standards of decency that mark the progress of a maturing society’ to determine which punishments are so disproportionate as to be cruel and unusual,” which involves taking a good long look at what constitutes a “national consensus,” and whether or not one has developed against the execution of offenders who were under 18 when the crime was committed. Just as important is to read Scalia’s scathing (he went so far as to read it from the bench, a rareity and a sign of the minority's displeasure) minority dissent (joined by Rehnquist and Thomas, O’Conner wrote her own dissent) which makes some interesting (if not entirely trustworthy) points regarding the majority’s supposed cherry-picking of sociological opinions and reliance on the aforementioned views of other countries in barring or disavowing the execution of under-18 offenders in supporting their opinion.

With this ruling we are, I sincerely hope, one step closer to abolishing our barbaric death penalty system altogether.

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