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Wednesday, March 02, 2005

Executing criminals who couldn't legally buy a drink when they committed their capital crimes

I haven't yet read the Supreme Court's new death penalty decision, and may have more to write about it tomorrow. But I can't resist whacking this comment by Andrew Stuttaford on The Corner:

Looks like a good decision to me (although international 'law' should not have been cited in any way). I'm biased, of course, in that I'm opposed to the death penalty in almost every circumstance, but, in particular, I've never understood the logic of a system which provides that someone is old enough to be executed for a crime committed at an age at which (so says Elizabeth Dole) he is too young to handle a beer.

This is way too facile to take seriously. The prospective beer purchaser hasn't already been through a preliminary hearing in which a judge, listening to evidence particularized as to him, has made a ruling that the prospective purchaser should be treated by the law as an adult. There aren't twelve clerks, good and true, at the 7-11, backed up by a trial judge and layers of appellate courts and years of appeals, to review the twelve clerks' decision. Even if there were twelve clerks, they wouldn't have sworn an oath to listen carefully to evidence presented by degreed, professional advocates arguing for and against the proposed purchase of alcohol by that particular 17-year-old, and to follow the judge's instructions. Indeed, they wouldn't have heard the judge's solemn instructions that they must take that 17-year-old's entire life story, including his age, into account in making their ruling on the proposed six-pack purchase. They wouldn't spend hours or days or many days deliberating on it, and have to reach a unanimous decision. They wouldn't have to look into the eyes of the victim's family, or the eyes of the accused and his family afterwards.

Juries decide the fates of adults charged with capital crimes. I believe in that system. I believe that juries are able to make highly individualized and conscientious decisions about whether a particular defendant's age when he committed the capital crime is a sufficient factor, when added in with all the other aggravating and mitigating factors, to swing the balance against the death sentence, with the prosecution appropriately being given the burden of proving the aggravating factors beyond a reasonable doubt just as they did the underlying crime.

In short, I believe that there are indeed 17-year-olds who could be trusted to buy themselves a six-pack, but there's no system in place to distinguish between them and the ones who can't. There is a system — human and therefore imperfect, but nonetheless extremely elaborate and time-tested — for determining which capital defendants deserve death notwithstanding their age when they committed the capital crime. Society's decisions as to whether (a) every 18-year-old gets to buy a beer or (b) one 17-year-old (when he committed the capital crime) will get a lethal injection, have essentially nothing in common with one another.

I write this, by the way, as a father of a 17-year-old son.  I have no doubt that if there were the same elaborate system individualized checks and balances for buying beer as there is (or rather, was before today) for the administration of capital punishment, his maturity level would be found equivalent to or better than any 18-year-old in either.

There are serious arguments to make on both sides of yesterday's decision.  But with due respect, Mr. Stuttaford's isn't one of them.

Posted by Beldar at 12:05 AM in Law (2006 & earlier) | Permalink


Other weblog posts, if any, whose authors have linked to Executing criminals who couldn't legally buy a drink when they committed their capital crimes and sent a trackback ping are listed here:

» Supremes to Juvenile Thugs: Don't Pay No Mind, If You're Under 18 You Won't Be Doin' Any Time from damnum absque injuria

Tracked on Mar 2, 2005 12:32:59 AM

» Beldar trashes the arguments from ThoughtsOnline

Tracked on Mar 2, 2005 8:32:55 AM

» A Foolish Inconsistency? from Muni Lawyer

Tracked on Mar 2, 2005 11:21:05 AM


(1) Carol_Herman made the following comment | Mar 2, 2005 12:18:27 AM | Permalink

Perhaps I'm begging the question, but what if the "mental age" can be dropped below 18? I'm not so sure that this terrible decision will do more than just give us aggravation while we contemplate that republicans (as well as Clinton's schoolmarmish Ginsberg pick) did this. This crew on the bench now has gotten too old to perform well.

By the way, my dentist just got called in for jury duty. For most of the week, he called in each day, and was told he wasn't needed. And, then on Friday, he got called.

You know what appalled him? He had to give his name, address, phone number, wife's name, and number of kids he had, OUT LOUD, in open court. While the defendant sat there with his lawyer.

Finally, he was asked if he could be impartial. And, he said: "Kids that join gangs are looking for trouble." This was a murder case. He was dismissed.

The system is rotting from the inside.

(2) Beldar made the following comment | Mar 2, 2005 12:30:40 AM | Permalink

Ms. Herman, the problem with the decision is that it ignores "mental age" or "emotional maturity" or anything else particularized to the accused. It creates a bright-line rule, simple but not particularly rational, to the effect that someone 17-years, 11-months, and 27 days old when he committed the crime can't be sentenced to death solely for that reason, regardless of all other factors.

(3) Carol.Herman made the following comment | Mar 2, 2005 1:15:37 AM | Permalink

Beldar, I agree with you. The Supreme Court blew it, today. But 5-4 decisions are muddled decisions. What I tried to point out is that these teenagers, underage now my law, for the death penalty ...

Well, a lot of them join gangs. (Let alone how many killers are retarded. Or psychotic.)

Maybe, there's a silver lining, though? When my dentist had to alert the defendent and his lawyer with all sorts of personal information (so if the gang wanted to find him, they could), the judge said that he didn't see the threat.

In California you can be called for jury duty EVERY YEAR. And, if you ignore the summons you're fined. So, I've noticed an increase in the number of professionals that get called. There are no excuses available to doctors that they need to care for their patients.

I had a dental appointment that hinged on cancelation because of what the courts are doing. When my dentist, finally called on Friday, showed up to do his civic duty, the impression made on him was to "be scared." And, what saved the day, when he was asked if he could be impartial, he said NO, BECAUSE KIDS JOIN GANGS TO GET IN TROUBLE. It's just amazing what some parents allow some underage kids to do! But our schools, here, aren't safe. Teachers are frightened of these kids, too.

It's rotting from the inside. Why the Supremes bent themselves to identify with "global" law, I have no idea. It sounds to me that the law profession, itself, fails, when the highest court in the land disses the Constitution, and over-reaches into Europe.

But for jurors? Who knows? It may have made them safer? Less likely that a guilty verdict can produce gang violence, no? Or, you're not afraid? Of all the things the nine sitting justices would NOT want to hear, is my rationalization. Too bad for them.

(4) DRJ made the following comment | Mar 2, 2005 4:27:41 AM | Permalink

I am, frankly, confused by recent criminal law rulings in the US Supreme Court. Why hold that strict adherence to mandatory sentencing guidelines is bad (as they effectively did with the federal guidelines), while also holding that there must be a bright-line rule on age in death penalty cases? To me, these decisions send the message loud and clear that the Supreme Court trusts Judges to exercise discretion, but they don't trust juries.

(5) DRJ made the following comment | Mar 2, 2005 4:39:24 AM | Permalink

And they don't trust Congress or Legislatures either.

(6) Allium made the following comment | Mar 2, 2005 8:58:23 AM | Permalink

The system is indeed warped. 17 can commit capital murder and not be held. 18 can join military. 16 can have an abortion without parental consent. 21 to buy a beer. Yet cant carry a midol at 18 while in school?

Since the parents cant/ will not take responsibility to raise thier kids "right" the governemt feels they need to step in and make blanket rulings. Yet they, like the parents, refuse to draw the accountability line. Where do we hold the kid, adult, parent accountable? Depends who was in control of the government at the time I guess. Stop side stepping the issue - the issue is we don't hold anyone accountable if it may infringe on thier "rights". The old adage - your rights "and" responsibilities no longer exists.

(7) Aubrey made the following comment | Mar 2, 2005 9:23:54 AM | Permalink

This is just another step along the road to eliminating the death penalty. Eliminate enough classes of people from the possibility of having it imposed, and the issue is moot.

(8) SemiPundit made the following comment | Mar 2, 2005 11:09:19 AM | Permalink

Isn't our primary obligation, particularly for those who profess to be Christians, the preservation of life and, maintenance of order in society? Imposition of the death penalty, once the offender is identified and isolated, seems to be more an act of revenge than justice. It has "global" implications as well, since Christians routinely assert that they are spiritually bound to all mankind.

For example, if someone breaks into your home and attacks you with the clear intention of killing you, are you right in killing that person (who is clearly guilty) after he is subdued by tying him up? Will you be prosecuted? Similarly, if society has contained the threat and restored order, is it right in executing the individual?

I do believe that killing in self-defense is consistent with this view, because extreme measures may be warranted to bring an immediate threat to stability.

Finally, is it moral to send a minor into combat to kill another minor who just happened to be placed in his predicament by his leaders, and then punish him for what is essentially the same moral transgression after he returns home?

(9) Wallace-Midland Texas made the following comment | Mar 2, 2005 11:20:21 AM | Permalink

I heartily concur with your opinion. Having recently served on a Midland County Grand Jury I can aver that if we spent extraordinary amounts of time discussing all the relevant facts, both legal and moral, before rendering our findings. In many cases chosing to No Bill citizens who quite obviously had some culpability. In most cases the judicial system works in the hands of the huddled masses.

(10) Carol_Herman made the following comment | Mar 2, 2005 1:36:26 PM | Permalink

Will the Court feel the heat from what bloggers are saying about this deision? And, what about Scalia's words? He wrote: "To this Court words don't mean anything." And, he added that they were making rules without even considering the issues relative to State's rights. And, how their position doesn't even sit with a majority of American's views on this subject. That has been tested, repeatedly, at the ballot box.

Oy. Rehnquist's court is such a muddled place of 5-4 decisions. But if I'm not mistaken, the jurists whose reputations last through time, are the ones like Cordozo, or Learned Hand, who went they write a minority opinion, are later extolled as virtuous opinions, when these subjects get re-argued yet again.

Plus, I'm confused when you compare previous decisions that seem to have untied judges' hands from "sentencing guidelines." And, I'm even more surprised that this is a judcial fiat. What happened to Congress?

After Rehnquist steps down how is this mess going to be fixed?

Ah, and OT, did you notice the democrat who won out over Peter Coors, and who had promised Colorado voters he was going to support republican nominees, including MYERS, has just now broken his word?

No penalties? We need some yellow cards that we can throw down on the playing field to convince politicians, and judges, that they need to play by the rules. Or else? Well, the democratic party will become the size of a zit, or a pimple. They're just handing out ammunition to get defeated.

As I said, will the MSM win on court approvals? Or will some wind now blow under the robes of the idiots sitting on the "Supremes?" And, to be called "The Supremes," don't they notice they're losing the public's respect? They lost mine long ago. But what about more normal people?

(11) Allium made the following comment | Mar 2, 2005 2:32:01 PM | Permalink

I think we have to TRUELY look at what the prison system is. In the ideal world we want to say we sentence people to be "rehabilitated", that they go to prison to learn from thier mistakes and come out and sin no more. But then we protest when they build a new prison in our backyard. Hmm makes me wonder who really believes in the easter bunny.

What are the figures of one timers vs repeat offenders? At what point do we say these are people that we cant deal with anymore? Life sentences? Concurrent sentences? Obviously if we put people in prison for decades we are hoping they never get out or at least are still there when we are gone.

Either they learn from thier stay or they don't and if they don't, then they continue to ignore society and thumb thier noses at those that wish to "save" them. So lets call it what it really is, prisons are not rehab centers, they arent givers of vengence, they arent even there to preserve the order of society. Repeaters dont care for society and those convicted of capital crimes are deemed not to be able to stay in society. They are simply there in most cases to get them out of our hair. We dont have to deal with them - they become someone elses problem. No reasons why they commit the crimes - nurture vs nature and all the other college late night kegger discussions are moot. We just want them away from the "good" people. Keep them fenced up and maybe they will go away. No noble causes - we just want them anywhere but our backyard.

So where does the death penalty come into play? Well we dont want them around but if we actually come out and say terminate or kill the guilty then we take ownership of the problem. If we just ship them out of sight and we gave them 3 hots and a cot then it stays not our problem. Kill them and we admit to vengence, retribution, resignation thay they are not a part of what we call society - what we really wish we could do. No, we would rather spend as much as the average family of 4 needs to survive to keep one person away from societies eyes.

Its all about making excuses and shuffling responsibility. End the problem and someone actually has to take responsibility. Dont tell me that its a persons life and the noble causes. As long as wars are fought, arguements at what point life begins, as long as theres justifiable homicide on the books, euthenasia - the price of life just adjusts to the situation.

(12) Steel Turman made the following comment | Mar 3, 2005 11:58:02 PM | Permalink

I posted this ...

If you are old enough to kill, you are old enough to die.

(13) SemiPundit made the following comment | Mar 4, 2005 8:12:25 AM | Permalink

With what exceptions?

(14) Drugstore Cowgirl made the following comment | Mar 4, 2005 12:00:22 PM | Permalink

One of the most disturbing things about this ruling to me was the reliance on International Law. This is the United States of America. There are too many entities working overtime to get us into their One World government. Et tu Supreme Court?

(15) Obelix made the following comment | Mar 5, 2005 11:01:48 AM | Permalink

Beldar, what's with the references by the judges to law in other countries and to evolving standards in this country? This seems outrageous to me. Could you shed some light on how the supreme court views its role?

(16) SemiPundit made the following comment | Mar 5, 2005 2:53:49 PM | Permalink

Shouldn't there be some issues on which we should actually measure our moral, ethical, and legal posture against international standards? Consider, for example, when we lecture other countries on civil rights violations, we normally expect that we will have our own house in order first.

Before this ruling, how many countries supported the execution of minors?

(17) SemiPundit made the following comment | Mar 5, 2005 3:01:40 PM | Permalink

I found it here (can we agree that this is pretty respectable company?):

"The United States is almost alone in a world which overwhelmingly opposes executions of minors. The only other countries on the globe that execute children under 18 are Iran, Yemen, Pakistan, Saudi Arabia and Nigeria. The United Nations Convention on the Rights of the Child, prohibits the execution for crimes committed under the age of 18. Only the U.S. and Somalia have failed to ratify the convention guidelines."


(18) Kerry made the following comment | Mar 5, 2005 4:29:22 PM | Permalink

There is a scene in the film A Man for All Seasons, Paul Scofield as Thomas More. He is being extolled by his once friend, the Duke to "Sign the act. Come on Thomas, look at these names, we've all signed. Won't you just come with us, for fellowship's sake". More, "When I die, and am sent to Hell for not doing my conscience, and you are sent to Heaven for doing yours, will you come with me, for fellowship's sake? I will not sign! I will not tell you why I will not sign." Shall we tatter our Constitution and Bill of Rights, going along with the rest of the world, for fellowship's sake?

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