I’m a death penalty agnostic; I still struggle with the issue. If I were in a voting booth with the stark choice before me: Abolish the death penalty, yes or no, I don’t know how I’d vote (as I’ve written before). Oddly enough, the case that gives me pause, the case where I say to myself, “if anybody deserves the death penalty, it’s this guy” — that’s the case that first the Missouri Supreme Court reduced the penalty from death and now the U.S. Supreme Court upheld that reduction in penalty. And I’m really unhappy with both courts — not about what they ruled but how and why. I’m not alone in that — if you think judicial decisions are all dry and windy dissertations without feeling, Justice Scalia’s dissent will disabuse you of that notion rather quickly. 

I’m unhappy because of the MSC decision in the first place because it ran directly counter to the precedent of the USSC. In the words of Justice Scalia:

To add insult to injury, the Court affirms the Missouri Supreme Court without even admonishing that court for its flagrant disregard of our precedent in Stanford. Until today, we have always held that “it is this Court’s prerogative alone to overrule one of its precedents.” State Oil Co. v. Khan, 522 U. S. 3, 20 (1997). That has been true even where ” ‘changes in judicial doctrine’ ha[ve] significantly undermined” our prior holding, United States v. Hatter, 532 U. S. 557, 567 (2001) (quoting Hatter v. United States, 64 F. 3d 647, 650 (CA Fed. 1995)), and even where our prior holding “appears to rest on reasons rejected in some other line of decisions,” Rodriguez de Quijas v. Shearson/
American Express, Inc., 490 U. S. 477, 484 (1989). Today, however, the Court silently approves a state-court decision that blatantly rejected controlling precedent.

One must admit that the Missouri Supreme Court’s action, and this Court’s indulgent reaction, are, in a way, understandable. In a system based upon constitutional and statutory text democratically adopted, the concept of “law” ordinarily signifies that particular words have a fixed meaning. Such law does not change, and this Court’s pronouncement of it therefore remains authoritative until (confessing our prior error) we overrule. The Court has purported to make of the Eighth Amendment, however, a mirror of the passing and changing sentiment of American society regarding penology. The lower courts can look into that mirror as well as we can; and what we saw 15 years ago bears no necessary relationship to what they see today. Since they are not looking at the same text, but at a different scene, why should our earlier decision control their judgment?

However sound philosophically, this is no way to run a legal system. We must disregard the new reality that, to the extent our Eighth Amendment decisions constitute something more than a show of hands on the current Justices’ current personal views about penology, they purport to be nothing more than a snapshot of American public opinion at a particular point in time (with the timeframes now shortened to a mere 15 years). We must treat these decisions just as though they represented real law, real prescriptions democratically adopted by the American people, as conclusively (rather than sequentially) construed by this Court. Allowing lower courts to reinterpret the Eighth Amendment whenever they decide enough time has passed for a new snapshot leaves this Court’s decisions without any force–especially since the “evolution” of our Eighth Amendment is no longer determined by objective criteria. To allow lower courts to behave as we do, “updating” the Eighth Amendment as needed, destroys stability and makes our case law an unreliable basis for the designing of laws by citizens and their representatives, and for action by public officials. The result will be to crown arbitrariness with chaos.

I think the good justice nails that one, but he only considers the effect on judges. How about police and prosecutors, who all too often “interpret” laws to their own advantage. Why should they be left out? The MSC destroyed the stability and respect for the law in an attempt to achieve an outcome that a majority of the Court want but not a majority of the citizens of the state of Missouri – an end to the death penalty. 

Supporters of the decision keep saying “The US has joined the rest of the world”. Screw that. My ancestors didn’t come here because the US is like the rest of the world. I don’t keep living here because of the weather; I stay here because we aren’t like the rest of the world. Why do non-Americans get a “vote” on how we live here? If I wanted the unelected to issue decrees, I could go live in Europe or Zimbabwe. Why this pean to peer pressure? When did conformity become a good thing? What happen to the bravery and importance of dissent? I don’t want the United States Supreme Court looking at laws in Europe, ignoring the consensus of the European people which is different, and saying that some mythical foreign consensus should be imposed upon the American people.

But what about this consensus that executing killers under 18 is cruel and unusual punishment? Isn’t that why we have elections and legislators and initiatives? What better way for an emerging consensus to emerge? It certainly beats some jackanape in a robe from taking the temperature of the American people by sticking a thermometer up his own ass, which is what just happened.

In urging approval of a constitution that gave life-tenured judges the power to nullify laws enacted by the people’s representatives, Alexander Hamilton assured the citizens of New York that there was little risk in this, since “[t]he judiciary … ha[s] neither FORCE nor WILL but merely judgment.” The Federalist No. 78, p. 465 (C. Rossiter ed. 1961). But Hamilton had in mind a traditional judiciary, “bound down by strict rules and precedents which serve to define and point out their duty in every particular case that comes before them.” Id., at 471. Bound down, indeed. What a mockery today’s opinion makes of Hamilton’s expectation, announcing the Court’s conclusion that the meaning of our Constitution has changed over the past 15 years–not, mind you, that this Court’s decision 15 years ago was wrong, but that the Constitution has changed. The Court reaches this implausible result by purporting to advert, not to the original meaning of the Eighth Amendment, but to “the evolving standards of decency,” ante, at 6 (internal quotation marks omitted), of our national society. It then finds, on the flimsiest of grounds, that a national consensus which could not be perceived in our people’s laws barely 15 years ago now solidly exists. Worse still, the Court says in so many words that what our people’s laws say about the issue does not, in the last analysis, matter: “[I]n the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment.” Ante, at 9 (internal quotation marks omitted). The Court thus proclaims itself sole arbiter of our Nation’s moral standards–and in the course of discharging that awesome responsibility purports to take guidance from the views of foreign courts and legislatures. Because I do not believe that the meaning of our Eighth Amendment, any more than the meaning of other provisions of our Constitution, should be determined by the subjective views of five Members of this Court and like-minded foreigners, I dissent.

And as for the idea that there should be a bright line based strictly on age, well, again I’ll let Justice Scalia do the talking:

Indeed, this appears to be just such a case. Christopher Simmons’ murder of Shirley Crook was premeditated, wanton, and cruel in the extreme. Well before he committed this crime, Simmons declared that he wanted to kill someone. On several occasions, he discussed with two friends (ages 15 and 16) his plan to burglarize a house and to murder the victim by tying the victim up and pushing him from a bridge. Simmons said they could ” ‘get away with it’ ” because they were minors. Brief for Petitioners 3. In accord with this plan, Simmons and his 15-year-old accomplice broke into Mrs. Crook’s home in the middle of the night, forced her from her bed, bound her, and drove her to a state park. There, they walked her to a railroad trestle spanning a river, “hog-tied” her with electrical cable, bound her face completely with duct tape, and pushed her, still alive, from the trestle. She drowned in the water below. Id., at 4. One can scarcely imagine the terror that this woman must have suffered throughout the ordeal leading to her death. Whatever can be said about the comparative moral culpability of 17-year-olds as a general matter, Simmons’ actions unquestionably reflect ” ‘a consciousness materially more “depraved” than that of’ … the average murderer.” See Atkins, 536 U. S., at 319 (quoting Godfrey v. Georgia, 446 U. S. 420, 433 (1980)). And Simmons’ prediction that he could murder with impunity because he had not yet turned 18–though inaccurate–suggests that he did take into account the perceived risk of punishment in deciding whether to commit the crime. Based on this evidence, the sentencing jury certainly had reasonable grounds for concluding that, despite Simmons’ youth, he “ha[d] sufficient psychological maturity” when he committed this horrific murder, and “at the same time demonstrate[d] sufficient depravity, to merit a sentence of death.” See ante, at 18.

…

In the instant case, by contrast, the moral proportionality arguments against the juvenile death penalty fail to support the rule the Court adopts today. There is no question that “the chronological age of a minor is itself a relevant mitigating factor of great weight,” Eddings, 455 U. S., at 116, and that sentencing juries must be given an opportunity carefully to consider a defendant’s age and maturity in deciding whether to assess the death penalty. But the mitigating characteristics associated with youth do not justify an absolute age limit. A legislature can reasonably conclude, as many have, that some 17-year-old murderers are mature enough to deserve the death penalty in an appropriate case. And nothing in the record before us suggests that sentencing juries are so unable accurately to assess a 17-year-old defendant’s maturity, or so incapable of giving proper weight to youth as a mitigating factor, that the Eighth Amendment requires the bright-line rule imposed today. In the end, the Court’s flawed proportionality argument simply cannot bear the weight the Court would place upon it.

The details are why ever since I heard them I’ve always thought that if anybody deserved death for his crimes, it was Christopher Simmons. And it’s those details that should matter, not age. 

On a side note, the state park Shirley Crook was murdered in was Castlewood — the park my cub scout pack has camped in, and I posted pictures of just below. That beautiful shot from the bluffs – around the river bend on the left is the railroad trestle Simmons shoved her off of to her death. 

I agree pretty much with everything Dale at QandO had to say about this decision, especially his final words: “It was never the Framers’ intention that the court become a judicial oligarchy with the power to legislate from the bench. The clear intent of the Framers was to provide a government where the will of the people prevailed. That is why we have a government with congressional supremacy. Congress wields substantial power over both the executive and legislative branches for precisely that reason.

Clearly, it’s time for congress to begin exercising their prerogative to bring the Supreme Court under control. 

Tags: death penalty, Supreme Court