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March 01, 2005

Comments

Brandon

BOOO! Scalia's dissent was beautiful. Minors are perfectly capable of making the life or death decision of having an abortion without so much as having to inform their parents, and yet somehow they aren't capable of making life or death decisions of whether to kill someone in cold blood? How's that work?

The Birdwoman

About bloody time, too.

*Is extremely proud to live in a country where we don't have the death penalty. Even if the Home Secretary is talking about keeping terrorist suspects under house arrest these days.*

djw

We've taken so many dangerous steps toward the abyss the last few years, it's an immense relief to see our country take a step away from it. This absolutely makes my day!

cmc

Three cheers for the Supreme Court! I am especially happy to learn of the result since I am former prosecutor in a state where there is a death penalty (in theory) and the age of adult criminal responsibility is 17! (My state's laws are most odd, in that 17-year olds can be both criminally prosecuted in the adult system AND subject to corporal punishment by their parents!)

cmc

Brandon,

According to your reasoning, those who support both the juvenile death penalty and parental consent for juveniles seeking abortions are also inconsistent!

My take on it is that juveniles ARE capable of making major decisions; but they are not AS experienced or wise or self-controlled as adults. We should take that into account when meting out punishments for juveniles. We should take that into account by focusing more on rehabilitation than punishment when addressing criminal behavior by juveniles. Someone who is a hoodlum at 16 may grow into a responsible adult by 30.

A juvenile seeking an abortion however is making a decision that will affect the rest of HER own life, as well as the life of the child she may choose to have. While she may not be as ready to make that decision at 16 as she would at 30, she is in a better position to make the decision than anyone else since it is she who will have the best sense of what steps she is willing and able to take to care for a child and of what affect her decision (whatever it may be) will have on her in the future.

Xrlq
We should take that into account when meting out punishments for juveniles. We should take that into account by focusing more on rehabilitation than punishment when addressing criminal behavior by juveniles. Someone who is a hoodlum at 16 may grow into a responsible adult by 30.

Or maybe not. Most burglary/murderers turn to murders when the victim turns out to be at home and the burglar panics. Not so for Christopher Simmons, who plotted both the burglary and the murder with two younger friends specifically because he wanted to murder somebody, and because he thought they could all get away with it because they were under 18. He then broke into a random house in the middle of the night looking for someone to murder, stumbled across a woman he happened to recognize, tied her up, threw her over a bridge, drowned her, and bragged to his friends about having killed a woman because "the bitch seen my face."

CMC, if you want to be the guinea pig and have Mr. Simmons live in YOUR neighborhood as part of his rehabilitation, be my guest. Just make sure your new neighbor doesn't get anywhere near my neighborhood.

cmc

Hi there, Xrlq.

I guess I don't agree with the notion that our only choices are (a) kill Mr. Simmons, and (b) have Mr. Simmons live next door to me.

I don't know anything about Mr. Simmons or what the best way is to ensure that he doesn't kill again. But I do know that the death penalty is not the only option to keep us safe from him. If the answer is to keep Mr. Simmons behind bars for the rest of his life, I could accept that. (I said that I believe that rehabilitation should be the emphasis in juvenile justice, but in cases like Simmons's protecting society looms large as well for obvious reasons).

cmc

Oh, and I also infer from your comment, Xrlq, that you are arguing that the juvenile death penalty is necessary to deter people like Mr. Simmons who believe they can get away with murder because they are under 18. Your argument assumes that the death penalty is a deterrent (not likely in most cases), and that other potential penalties (such as lengthy imprisonment) would not serve as a deterrent to people like Mr. Simmons.

cmc

Oh, and I just googled Christopher Simmons and he apparently AND apparently he was originally sentenced to the death penalty (although that sentence was later set aside). So the applicability of the death penalty to him did NOT deter him from his crime.

Lynn Gazis-Sax

djw totally speaks my mind.

Amy

I share your enthusiasm Hugo! Actually, I'm writing a paper on the decision as recommended by my prof during his office hours today.

Xrlq

CMC: of course he was sentenced to death, else this case could never have made it to the Supreme Court in the first place. I do realize that in theory, life without parole is an option, but in practice it's often not since the people who argue passionately against the death penalty generally oppose stiff prison penalties, as well. If you don't believe me, search the archives of this blog for anything relating to Proposition 66, which would have turned thousands (possibly tens of thousands) of California's most vicious offenders out on the streets.

I never said the only options were to kill Simmons or to have him live next to you. A third option is to have him live next to someone else, instead. A fourth, which he'll probably get, is life without parole, although I'm still not sure how to square that with your suggestion that we "focus[] more on rehabilitation than punishment." It's one thing to make that argument in a vacuum, and quite another to make it as an argument against Simmons's own execution.

Last and least, the argument that the death penalty didn't deter Simmons is too clever by half. If you read the case, you know that he was convinced that it didn't apply to him because of his age. Unfortunately, he was right.

djw

Xrlq: I don't know if you're aware of this, and I can't give you a citation or anything, but it's my understanding that one of the groups of violent felons with the lowest recidivism rate are those who committed a violent crime as teenagers and spent several decades in jail. Not too surprisingly, they're really not the same people after 20-30 years.

I get this tidbit from a criminologist I know, so if it's incorrect, I apologize.

cmc

Good morning, Xrlq--

1) I do not oppose lengthy, or lifetime, sentences of imprisonment (even for young offenders) when appropriate depending on the case. As a prosecutor, I have personally advocated very lengthy sentences for particular offenders. I do believe that an offender's youth should be considered in determining the appropriate sentence.

2)My acknowledgment that life imprisonment may be an appropriate sentence for a 17 year old does not conflict with my belief that rehabilitation should be the focus with younger offenders. Life imprisonment allows for the possibility of rehabilitation whereas the death penalty does not. Even if Simmons never sees freedom, his life will potentially have value to others (and to himself), and therefore rehabilitation is still possible even behind bars. (Rehabilitation is not the ONLY consideration even for young offenders, and therefore life behind bars rather than allowing Simmons into someone's neighborhood may be necessary to protect the community.)

3) I was aware from your prior comment that Simmons believed that the death penalty did not apply to him when he committed his crime. The point is that even though the death penalty for 17 year olds was in effect at the time of Simmons's crime, it did nothing to deter him from his crime. The fact is that most criminals are too impulsive, stupid, ignorant, or lazy to analyze the consequences of their actions so the death penalty has no deterrent effect on most criminals. In this case, Simmons was ignorant of the law, and too lazy to research the law before committing his crime. Therefore the existence of the death penalty for 17 year olds did not prevent him from killing.

Lynn Gazis-Sax

I do realize that in theory, life without parole is an option, but in practice it's often not since the people who argue passionately against the death penalty generally oppose stiff prison penalties, as well.

Really? Oppose any stiff prison penalties at all, for any crime whatsoever? And want all criminals, regardless of offense, promptly released and placed next door to people? I'm one of those people who argue passionately against the death penalty, and I don't oppose all stiff prison penalties. I want us to do our best to rehabilitate criminals, but I recognize that some people aren't currently safe to leave in the community (though they may be safe quite a few years later), and some people may never be.

If you don't believe me, search the archives of this blog for anything relating to Proposition 66, which would have turned thousands (possibly tens of thousands) of California's most vicious offenders out on the streets.

And here you're misunderstanding the problem people like me have with the three strikes law. It's not that I believe no one should ever have a long prison sentence; it's that I don't think removing all discretion to release people from prison once the number of felonies hits three is a sensible way to choose who gets lifetime without parole sentences.

But even lifetime in prison does allow the possibility that the person may be rehabilitated while remaining in prison, or released if evidence of innocence comes up later. The death penalty doesn't.

Xrlq

DJW:

I don't know if you're aware of this, and I can't give you a citation or anything, but it's my understanding that one of the groups of violent felons with the lowest recidivism rate are those who committed a violent crime as teenagers and spent several decades in jail. Not too surprisingly, they're really not the same people after 20-30 years.

That may be true, but for someone who has already committed one crime as evil as Simmons's, I'm still not willing to put others at risk just to give this potentially reformed, potentially unreformed thug a new lease on life. Whatever the recidivism rate is, I'm sure it's well north of zero. Besides, while preventing subsequent crimes is one major consideration in sentencing, it's not the only one. Another is justice, and from where I sit, the mere fact that Christopher Simmons is still consuming oxygen today is a continuing, posthumous insult to Shirley Crook, whose only "crime" was going to bed in her own bedroom in her own house on what should have been a normal night. She'll never get a second chance, and neither should her killer.

CMC:

In this case, Simmons was ignorant of the law, and too lazy to research the law before committing his crime. Therefore the existence of the death penalty for 17 year olds did not prevent him from killing.

Ignorant of the law, or savvy about the internal workings of the Politburo? In the end, to the extent wacky Supreme Court decisions count as "law," Simmons wasn't ignorant about the law; he was right! In any event, given his perception of the death penalty at the time he planned the murder, any talk of its failure to deter him is silly. It's axiomatic that no one will ever deterred by any penalty they believe - rightly or wrongly - does not apply to them. If that were really your issue, then you ought to be arguing for Simmons's execution, preferably with as much fanfare as possible. Why not telivise the execution nationally, all the better to make sure that every 17 year old knows that he won't get away with first degree murder on account of his age. Conversely, if you're not prepared to go down that road, you probably shouldn't be raising the deterrence issue at all.

Lynn Gazis-Sax:

And here you're misunderstanding the problem people like me have with the three strikes law. It's not that I believe no one should ever have a long prison sentence; it's that I don't think removing all discretion to release people from prison once the number of felonies hits three is a sensible way to choose who gets lifetime without parole sentences.

Translation: you know very little about how the three strikes law works and less about what Prop 66 would have done, but nevertheless hold trong opinions on both. FWIW, you're not alone.

cmc

Dear Xrlq--

Chris Simmons sounds like he has a lot of potential; he is SO smart and SO savvy that he actually was able to predict that the Supreme Court would reverse its prior holding permitting the death penalty for 17 year olds. Give this guy a law degree and a pen; he can start writing law review articles from his cell!

In all seriousness though, I think you are correct that the only way for the death penalty to potentially have the deterrent effect you posit is to do some sort of massive public education campaign to teach teenagers that they are subject to the death penalty-- executing teenage killers with fanfare on television would be one way to do that. That's not a road I want to take, and I gather you don't either-- and besides even then I am not convinced that the death penalty would really deter those who are inclined to kill.

Besides, I don't support the death penalty for juveniles (or anyone) in the first place. I raised the deterrance issue because I thought that's what you are getting at when you pointed out that Simmons believed he could get away with his crime because he was under 18. If deterrence is not your basis for supporting the death penalty, does that leave only "eye for an eye" type justice as your reasoning?

Jonathan Dresner

Scalia's dissent was chilling, as was the fact that a third of the court bought into it (the other dissent was much more reasonable, though I think logically flawed): if the courts are not arbiters of justice as well as law, then we have little hope for justice in this world.

Xrlq

CMC: deterrence is part of my reason for supporting the death penalty, justice is another. While death penalty abolitionists love to argue about the evils of "just one" innocent being executed, I'm more concerned by the inevitably larger number of innocents killed by repeat offenders who shouldn't have been alive in the first place. And yes, a public execution of Christopher Simmons probably would have been a good idea, especially if coupled with frequent reminders to the effect of "this is the guy who thought he could get away with it because of his age."

JD: what is so "chilling" about the notion that legislators should make laws and judges should apply them? And what on earth kind of "justice" demands that a cold-blooded killer be rewarded for gaming the system by planning ahead and getting his thrill murder out of the way before he hits the magic number? Possibly the dumbest part of the Court's opinion is that it was authored by Justice Kennedy, who voted the other way on the same issue in 1989. I might have a tiny bit of respect for him if the opinion had a more self-effacting "boy did we bugger that case up" tone. Instead, he criticized the older case on largely technical grounds, arguing more generally for an allegedly emerging "consensus" based on the actions of four whole legislatures, plus one state court, all from states that hadn't executed any juveniles for at least 30 years, if ever.

Maybe I should ask this instead: do you even care if a judicial opinion is based on law, or are you concerned only with getting your way politically? Would you have been just as happy if, rather than writing some legalese-sounding mumbo jumbo, Justice Kennedy had simply xeroxed 25 random pages from the local telephone directory, and then scribbled "[t]he judgment of the Missouri Supreme Court setting aside the sentence of death imposed upon Christopher Simmons is affirmed" at the end, in crayon?

Jonathan Dresner

"XLRQ": Your tone is offensive. I'm going to answer you anyway, though you don't deserve it.

Why should I be impressed by another iteration of the "judges should not legislate" fallacy, when it's perfectly clear that Scalia and his co-dissenters would legislate and nullify to their hearts content if they were in the majority on this issue.

The mumbo-jumbo in this case that bothers you is in the constitution: "Cruel" and "unusual" are subjective and relative terms which require some interpretive and pragmatic effort; it doesn't mean that legislators have carte blanche to declare whatever they do constitutional, which is the chilling implication of Scalia's dissent.

Col Steve

Jonathan:
The supporting Justices indicated using an "objective" criteria to measure what is cruel and unusual - "national consensus" -

a national consensus has developed against the execution of those offenders since Stanford.

The next year, in Stanford, a 5-to-4 Court referred to contemporary standards of decency, but concluded the Eighth and Fourteenth Amendments did not proscribe the execution of offenders over 15 but under 18 because 22 of 37 death penalty States permitted that penalty for 16-year-old offenders, and 25 permitted it for 17-year-olds, thereby indicating there was no national consensus. 492 U.S., at 370—371. A plurality also “emphatically reject[ed]” the suggestion that the Court should bring its own judgment to bear on the acceptability of the juvenile death penalty. Id., at 377—378.

and later

As in Atkins (my note: the case about death penalty and mental retardation), the objective indicia of national consensus here–the rejection of the juvenile death penalty in the majority of States; the infrequency of its use even where it remains on the books; and the consistency in the trend toward abolition of the practice–provide sufficient evidence that today society views juveniles, in the words Atkins used respecting the mentally retarded, as “categorically less culpable than the average criminal

What's subjective is how the justices decide the metrics for an "objective" indicator. Wonder if they'll use the same standard in deciding the 10 commandments case?

Lynn Gazis-Sax

Translation: you know very little about how the three strikes law works ...

Whatever. I could have qualified the business about felonies (yes, I read my entire darn proposition election guide every election, and no, I'm not an idiot) and been more specific about where I find the three strikes law an unreasonable and arbitrary place to draw the line, what I don't want counting as a strike and why, and when I think we should give really long sentences and when shut people away for life. But why bother? You've made it clear you're not interested in discussing my actual views. Regardless of what I say, you'll either respond with contentless mockery or threaten to put Osama Bin Laden next door to me.

As it happens, I do know some people who voted against Proposition 66 with whom I would be interested in having a discussion, not about Proposition 66 itself (since that's now dead), but about sentencing in general; I know that they gave careful thought to their votes and that, if they respond to me at all, it will be with arguments that actually address my concerns. So, for the sake of conversation with them, I'll take the topic up at my blog in a couple of days. I'll just not anticipate any response from you.

Switching to Col. Steve, whose comments I always find interesting:

The supporting Justices indicated using an "objective" criteria to measure what is cruel and unusual - "national consensus"

Is this standard used often in Supreme Court decisions, or are they using it here because of the problem of defining "cruel and unusual" by a measure which stands outside themselves? Because it does seem as if the Court has often wound up following shifts in opinion that started elsewhere.

What's subjective is how the justices decide the metrics for an "objective" indicator.

Well, some parts of the Constitution do seem to invite more wiggle room for shifting standards over time than others.

Xrlq

JD: Regarding "my" offensive tone, something about pots, kettles and the absence of all colors appears in order. You are entitled to believe whatever you want about Justice Scalia supposedly being just as much of a judicial activist at heart as anyone else is, but until you can provide some actual evidence to back that up, you have no business claiming your cynical assumption about someone else's motives is "perfectly clear." Even if it were clear, that would be a strike against Justice Scalia personally; it would not make the argument itself a "fallacy" or weaken it in any way. Speaking of fallacies, it's one thing to say "cruel and unusual" does not give legislatures carte blanche, which no one ever claimed that it did. It's quite another to go to the opposite extreme and argue that that very phrase does give unelected judges carte blanche to strike down any law they don't like by assigning it a meaning all nine of them know - not "should know," mind you, but actually do know - its authors did not intend.

While you huffily claimed you were going to answer my question, you didn't, so I'll ask it again. Do you even care if a judicial opinion is based on law, or are you concerned only with getting your way politically?

LGS: No one called you an idiot. I did suggest you were ignorant about the issue despite having a strong opinion on the matter, and I stand by that. After all, the basis you gave for opposing the law was, and I quote, "I don't think removing all discretion to release people from prison once the number of felonies hits three is a sensible way to choose who gets lifetime without parole sentences." Maybe I'm just a bit thick, but I'm having a hard time trying to read that sentence in a way that does not imply that you think the three strikes law (1) strips judges and/or juries of discretion to apply it or not apply it as justice requires, (2) applies to all felonies, and (3) always imposes a sentence of life without parole on the third strike. Am I missing something?

Stephen

From Roper vs. Simmons we have the following:

". . . we return to the rule, established in decisions predating Stanford, that “The Constitution contemplates that in the end our own [Supreme Court’s] judgement will be brought to bear on the question of the acceptability of the death penalty under the Eighth amendment.” Page 9- majority opinion


“From a moral standpoint, it would be misguided to equate the failings of a minor with those of an adult, for a greater possibility exists that a minor’s character deficiencies will be reformed.” P. 16 – majority opinion

and

"The differences between juveniles and adult offenders are too marked and well understood to risk allowing a youthful person to receive the death penalty despite insufficient culpability. An unacceptable likelihood exists that the brutality or cold-blooded nature of any particular crime would overpower mitigating arguments based on youth as a mater of course, even where the juveniles offender’s objective immaturity, vulnerability and lack of true depravity should require a sentence less than death” P.19 – majority opinion

As I read it, the court will use its judgment to determine the morality of the applicability of the Eight Amendment. Further, it will not allow other courts to use age as a mitigating because it’s likely that others will be “overpower[ed]” by the circumstances. Sounds rather patronizing to me.

Per Jonathan Dressner -- “if the courts are not arbiters of justice as well as law, then we have little hope for justice in this world.”

Here’s my question to Hugo, Jonathan, and it really is a question? The courts allow that the death penalty can be used as “retribution and deterrence.” Even allowing that the death penalty is not a deterrent (debatable), how would you define justice being served in the case of Simmons?

Stephen

Xrlq

[Crickets chirping.]

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