Baseball Crank
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March 1, 2005
LAW: Supreme Court Invalidates Article V

The Supreme Court today held, in Roper v. Simmons, that the Eighth Amendment prohibits the execution of defendants convicted of capital crimes if the defendant was under age 18 at the time of the crime, on the grounds that such a punishment would be "cruel and unusual" within the meaning of the Eighth Amendment.

On its face, this may sound like the typical stuff of Supreme Court decisions. It is not. In fact, the Court has, at least as far as the death penalty is concerned, abolished the traditional mechanism for constitutional amendments by act of state legislatures embodied in Article V. A little explanation of the decision is in order to set the stage here.

The Court had reached the opposite conclusion on execution of under-18 murderers and the like as recently as 1989, and its decision today, written by Justice Kennedy, does not even attempt to argue that its 1989 opinion had been wrongly decided; instead, it concluded that the meaning of the phrase "cruel and unusual punishments" had changed in the intervening 16 years.

The Court begins by following the interpretive method it used in its 2002 decision in Atkins v. Virginia (discussed here in one of my first-ever blog posts), which similarly overturned a recent precedent ("Penry") that had permitted executions of mentally retarded defendants:

Three Terms ago the subject was reconsidered in Atkins. We held that standards of decency have evolved since Penry and now demonstrate that the execution of the mentally retarded is cruel and unusual punishment. The Court noted objective indicia of society's standards, as expressed in legislative enactments and state practice with respect to executions of the mentally retarded.

(Emphasis added). The Court rested today's conclusion that "standards of decency have evolved" on two major items of evidence. First, changes in state laws and practices:

30 States prohibit the juvenile death penalty, comprising 12 that have rejected the death penalty altogether and 18 that maintain it but, by express provision or judicial interpretation, exclude juveniles from its reach. . . . In the present case . . . the practice is infrequent. Since Stanford, six States have executed prisoners for crimes committed as juveniles. In the past 10 years, only three have done so: Oklahoma, Texas, and Virginia. . . .

There is, to be sure, at least one difference between the evidence of consensus in Atkins and in this case. Impressive in Atkins was the rate of abolition of the death penalty for the mentally retarded. Sixteen States that permitted the execution of the mentally retarded at the time of Penry had prohibited the practice by the time we heard Atkins. By contrast, the rate of change in reducing the incidence of the juvenile death penalty, or in taking specific steps to abolish it, has been slower. Five States that allowed the juvenile death penalty at the time of Stanford have abandoned it in the intervening 15 years - four through legislative enactments and one through judicial decision.

(Emphasis added). In short: "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."

What is really bizarre here, as I've noted before here and here, is the idea that new state laws can change the meaning of the constitution. In this case, the Court has determined that the actions of four state legislatures and one state court have accomplished a change in the meaning of the Eighth Amendment that would otherwise require an amendment to the Constitution.

Article V is clear:

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress . . .

Not much ambiguity there: to change the Constitution's effect on a particular law or rule, you need two thirds of the states or two thirds of both Houses of Congress just to propose an amendment, and three-fourths of the states (38, at present) to ratify one. By today's decision, that can be whittled down to four legislatures and one state court. (And note how this sets the stage for doing away with the role of the legislatures in this process entirely and handing over the consensus to, say, the Massachusetts Supreme Judicial Court and a few friendly courts in Vermont, Hawaii, etc.) And - unlike in the usual Article V situation - there's no indication that those legislatures knew they were changing the Constitution, and thus the deliberative process devised by the Framers is completely eviscerated.

Strangely, the Court at one point even tries to shift the burden of showing the constitutionality of state laws onto the states: "Petitioner cannot show national consensus in favor of capital punishment for juveniles but still resists the conclusion that any consensus exists against it." Of course, silly me, I always thought a state law didn't require a "national consensus," it just required a bill to go through the state legislature. So much for "laboratories of democracy" - consensus, apparently, now requires uniformity.

(Would the Court reach a similar conclusion about the malleability of the meaning of an amorphous term like "liberty" in the Due Process Clause in the Fourteenth Amendment? Maybe more states should pass laws against abortion - remind me again how many were on the books at the time of Roe v. Wade - I think it was 49).

The Court's reliance on the infrequency of such executions is also odd - that could just as easily be proof that the safeguards are effective in limiting the use of the death penalty to situations where it is appropriate. Besides, nothing in the constitution says prosecutors have to use a particular tool repeatedly or have it declared unconstitutional.

Second, the Court points to treaties and foreign law:

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. . .

As respondent and a number of amici emphasize, Article 37 of the United Nations Convention on the Rights of the Child, which every country in the world has ratified save for the United States and Somalia, contains an express prohibition on capital punishment for crimes committed by juveniles under 18. . . . Parallel prohibitions are contained in other significant international covenants.

As for foreign law, I can't well add to Justice Scalia's discussion of the foreign law issue in his dissent:

Unless the Court has added to its arsenal the power to join and ratify treaties on behalf of the United States, I cannot see how this evidence favors, rather than refutes, its position. That the Senate and the President-those actors our Constitution empowers to enter into treaties, see Art. II, §2 - have declined to join and ratify treaties prohibiting execution of under-18 offenders can only suggest that our country has either not reached a national consensus on the question, or has reached a consensus contrary to what the Court announces.

(Emphasis in original). Scalia goes on to note the myriad ways in which the majority of foreign laws differ from our own, ranging from the Fourth Amendment to the Establishment Clause to the right to trial by jury, and castigates the other Justices for ignoring foreign law except where it suits their purposes. As usual, he's right: when you start using interpretive standards that place no limits at all on how judges decide cases, you can't well expect to get any sort of consistency in return. There's just no chance that today's majority would consider any change in state or foreign law as evidence that "standards of decency have evolved" in a way that would produce a result favored by conservatives. Zero.

UPDATE: Orin Kerr notices that it appears that most of the "evolving" of standards here was done after the 1993 murder and 1994 conviction for which the defendant was sentenced to death. In other words, his sentence was constitutional under then-current standards when it was imposed, and of course he is no longer a minor.

Posted by Baseball Crank at 6:47 PM | Law 2005 | Comments (5) | TrackBack (4)

I’m not a big death penalty advocate, but the legal reasoning by the majority is, again, appalling.

How exactly do the law degrees of the justices give them any expertise in standards of morality? Why not just put the Gallup people in charge of the Court and cut the time and expense of litigation?

“By what conceivable warrant can nine lawyers presume to be the authoritative conscience of the Nation?” Indeed.

The Court’s deference to international opinion is also mighty selective. What do the world’s one billion Muslims think of capital punishment? Or are only the opinions and sensibilities of liberal white Europeans worth considering? (Not that I think the Supreme Court should be bowing to sharia either, but it goes to show how self-serving the Court’s “logic” is).

Scalia’s in the right here. The Court is imposing its own moral views and then walking backwards to find a legal justification, in this case a lame invocation of the opinions of non-Americans. That’s simply not the job of judges and is nothing less than an abuse of power.

Posted by: TMH at March 1, 2005 9:27 PM

Here's my question. There's a one-way ratchet aspect to this decision and to this style of adjudication, in the sense that once the death penalty is barred, there's no longer a chance for legislatures to demonstrate a contrary consensus by enacting juvenile death statutes. Or is there? Suppose 10 states were now to enact statutes authorizing a death sentence for 17 year olds, then leave them on the books without charging anyone for, say, 10 years, and then bring a test case. Wouldn't that show a contrary consensus to the one found by the SCt yesterday? (Assume good faith, which I admit is difficult.)

Posted by: Attila at March 2, 2005 10:45 AM

I'm not going to dispute your general opinion on the case. However, your assertion that the Supreme Court is doing something new and violating the Consitution might not be accurate. According to Dahlia Lithwick's Slate piece (should be linked on my name) on the case, the evolving standards aren't new. As she says:

Everyone in this case is essentially agreed that the Eighth Amendment standard for what constitutes cruel and unusual punishment is, after a case called Trop v. Dulles, not fixed in time but must reflect evolving standards of what is decent or cruel or excessive.

Now, I have no clue if that's accurate, but if it is, then your problem isn't with this case, but with the concept of the evolving standard that was already established.

Personally, I think that to some extent we have to do things this way; the standards for "cruel and unusual punishment" are utterly different than what they were in 1800. That doesn't mean Kennedy was right or wrong, but practically, there have to be limits even on strict construction. Then again, I'm not a strict constructionist (or a lawyer, for that matter).

Posted by: Devin McCullen at March 2, 2005 12:20 PM

The amazing (maybe ironic) thing is that the same court that that decided innocent people can be murdered up until birth is the one that decided that criminals shouldn't be punished if they have the foresight to commit their crime prior to age 18.

I'm not arguing necessarily for the death penalty. However, if the death penalty isn't "cruel and unusual" for an 18 year old than it isn't for anyone. If it is "cruel and unusual" punishment then it always is.

Posted by: LargeBill at March 2, 2005 12:48 PM

LargeBill, this is not a case about abortion.This case is about the standards of responsibility regarding extreme circumstances our society is willing to apply to categories of individuals.

Your logic of "if it C&U for one then it C&U for all" hence abortion should be lumped in here as well is folly. Would the reverse be true? If you cannot perform abortions should you not be able to execute people? One standard does not apply to all cases. We assign different levels of accountability to different groups all the time.

The death penalty is the most radical step our justice system can take. I think as a society we need to be very careful about how we think about taking the lives of juveniles, the mentally retarded and, in lots of cases, the innocent.

Posted by: jim at March 3, 2005 11:22 AM
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