Wednesday, March 02, 2005

More on the death penalty

Matt Yglesias has another smart post discussing yesterday's decision in Roper. He argues that the Court's reasoning is dubious in its reliance on evolving moral standards and that the decision is flawed in that it draws an arbitrary line (age 18) before which execution is unconstitutional. Matt suggests that the Court is basically legislating, and that line drawing is best left to the legislatures.

To some extent, I agree with Matt. It often seems that when courts get into the business of moralizing and line drawing, they tend to either mess it up, or piss people off. The best example of this is Roe v. Wade, but I'll try to think of some others. Nonetheless, the fact that a court's decision is messy or inflammatory doesn't necessarily make it incorrect. In this instance, the Court is saying that executing juveniles offends the 8th Amendments prohibition against cruel and unusual punishments and, that under current cultural and legal norms, it is cruel (and possibly unusual) to punish juveniles with death.

Scalia (and Matt to some extent) argues that the Court has assumed the role of moral arbiters and has applied the subjective values of 5 justices. The problem, though, is that the 8th Amendment incorporates language that is inherently subjective. What exactly is "cruel and unusual", how do establish that standard and whose standards do you apply? These are open questions. I suspect that the guys who wrote the Constitution understood this and chose to include a subjective standard such as "cruel and unusual" (instead of providing an exhaustive list of prohibited punishments) to ensure that the United States penal system could adapt to changing times. The truth is criminal penalties have changed throughout our Nation's history, and the Founders knew that.

In any case, assuming that the moral judgment here is valid, there is still the question of line drawing that Matthew raises. Matt argues that such line drawing, being arbitrary in nature, should be left to the political process. I kind of agree, but don't see it would work in this case. Step back for a minute and consider that in 2002, in Atkins v. Virginia, the Supreme Court ruled that it was unconstitutional to execute the mentally retarded. As a result, we now have cases that say you can't execute minors and you can't execute retards. Generalize that and you come up with a rule something like, "You cannot execute people of limited capacity." Try articulating that in a way that does not include some degree of line drawing. I don't think it's possible.

You could leave the definition of "limited capacity" up to the states, but eventually it's going to come back to the Court. Somewhere, sometime, a plaintiff would challenge a state's age of execution. Either the Court draws lines or we have a meaningless prohibition on the execution of "minors".