Dissent On Children And the Death Penalty

Expert jurists, as all the Supreme Court Justices are, can effectively present alternate perspectives on an issue through dissenting opinions in a case. All the same, it is not common for a strongly divided Court to voice its opinions strongly in an opinion. It is even more uncommon to have multiple dissenting opinions. (Initial report on Supreme Court ruling that the death penalty for juveniles is unconstitutional)

Judicial activism has been both good and bad for societies the world over. A mute, consensus-driven court might not be a valuable resource. An independent judiciary has been recognized as one of the cornerstones of a free society. The multiple dissents illustrate this principle clearly.

(ref on judicial activism: Justice Saldanha, Retd., of India, who did much in this sphere, including this paper on "Judicial Activism as a catalyst of institutional reform")

The issue of death penalty for juveniles is a strong enough issue, causing two dissenting opinions. (Full judgement at FindLaw)Justice Sandra Day O'Connor opines that

(O'Connor)Adolescents as a class are undoubtedly less mature, and therefore less culpable for their misconduct, than adults. But the Court has adduced no evidence impeaching the seemingly reasonable conclusion reached by many state legislatures: that at least some 17-year-old murderers are sufficiently mature to deserve the death penalty in an appropriate case. Nor has it been shown that capital sentencing juries are incapable of accurately assessing a youthful defendant's maturity or of giving due weight to the mitigating characteristics associated with youth.

On this record--and especially in light of the fact that so little has changed since our recent decision in Stanford--I would not substitute our judgment about the moral propriety of capital punishment for 17-year-old murderers for the judgments of the Nation's legislatures. Rather, I would demand a clearer showing that our society truly has set its face against this practice before reading the Eighth Amendment categorically to forbid it.

I turn, finally, to the Court's discussion of foreign and international law. Without question, there has been a global trend in recent years towards abolishing capital punishment for under-18 offenders. Very few, if any, countries other than the United States now permit this practice in law or in fact. See ante, at 22-23. While acknowledging that the actions and views of other countries do not dictate the outcome of our Eighth Amendment inquiry, the Court asserts that "the overwhelming weight of international opinion against the juvenile death penalty ... does provide respected and significant confirmation for [its] own conclusions." Because I do not believe that a genuine national consensus against the juvenile death penalty has yet developed, and because I do not believe the Court's moral proportionality argument justifies a categorical, age-based constitutional rule, I can assign no such confirmatory role to the international consensus described by the Court. In short, the evidence of an international consensus does not alter my determination that the Eighth Amendment does not, at this time, forbid capital punishment of 17-year-old murderers in all cases.

Justices Scalia, Rehnquist and Thomas in a second minority opinion state

(Scalia, et. al.)Today's opinion provides a perfect example of why judges are ill equipped to make the type of legislative judgments the Court insists on making here. To support its opinion that States should be prohibited from imposing the death penalty on anyone who committed murder before age 18, the Court looks to scientific and sociological studies, picking and choosing those that support its position. It never explains why those particular studies are methodologically sound; none was ever entered into evidence or tested in an adversarial proceeding.

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Article Author: Aaman Lamba

Aaman Lamba is a Blogcritics editor, as well as the Publisher of Desicritics.org, a Blogcritics network site covering media, politics, culture, sports and more with a global South Asian focus

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