Friday, March 18, 2005

Death Penalty for Children

In his column in the Boston Globe today, Thomas Oliphant discussed the recent Supreme Court decision on the death penalty for those under 18 years of age. He supports the dissent of Justice Antonin Scalia:

Scalia has consistency and clarity on his side. The majority failed on both counts, unable to deal with the basic question of whether the death penalty itself or its application to the acts of adolescents is inherently cruel. Instead, it used to a great extent the other leg in the Eighth Amendment's standard, that this kind of killing is unusual. It was the flip side of a famously poor argument: Everybody does it. The best the majority could muster was the observation that virtually nobody does it anymore.

What's still lost in all this is a position I've long believed can unite left and right - that the death penalty is a government program and as such is by definition arbitrary, capricious, and illogical in its application. ...

It is, I guess, fine to argue as [Justice Anthony] Kennedy did that the ability to understand consequences, impulses, peer pressure, and character itself are all a function of age and that adolescents cannot be lumped with ''mature'' people as equally culpable. The view, however, is by definition subjective and arbitrary when it comes to the deadly and absurd business of choosing a cutoff age. Arguments aside, the new standard is that the state can kill you for something you did after your 18th birthday, but you live if you committed a heinous murder at 17 years, 11 months, 29 days. I'm just one person but I don't recall changing that much in that interval.

Deconstructing the arguments on executing people below a certain age, whether one is for it or against it, reveals some of the glaring inconsistencies in the legal status of the death penalty in the U.S.

If the death penalty is unconstitutional because it is cruel and unusual, or arbitrarily and capriciously applied, or fails to meet the test of equal protection under the law, then it isn't constitutionally permissible in the U.S. I believe it fails all those tests, and declaring it unconstitutional would solve the problem for all the states and the federal government.

But this decision by the Supreme Court left us in an absurd position. It's constitutional for the states to execute their citizens, so on what basis does the Court decide that the death penalty cannot be applied to those under 18? There's absolutely nothing in the Constitution, with all its guarantees of rights and protections, that supports that decision. That's why the majority opinion, written by Justice Kennedy, was awkwardly framed in the context of what some states do versus others and what some other countries in the world do. As Oliphant accurately points out, none of that makes any sense.

Here's the hard logic: If it's permissible for the states and the federal government to kill their citizens, then it's permissible for them to execute anyone of any age, at the discretion of courts and juries. There's no valid constitutional argument to the contrary.

It's time to abolish the death penalty in the United States.


Blogger Junebugg said...

We have a problem with age in the USA. At 18 you can be executed for a crime or serve in the military. But you can't buy a beer! I don't approve of killing, but I have to admit that if someone killed a loved one of mine, I would probably want to pull the switch on them. Plus you have the prison overcrowding and the lack of incentive to do better is Death isn't staring you in the eye as a result of your crimes. It's a hard question, and no answer will suite everyone.

11:48 AM, March 18, 2005  
Blogger Zelda said...

Hey Tom,
How's it going. This is just a quick note to let you know that my blog has moved to a new address. The url is So if you could please update your blogroll accordingly, I'd be much obliged. Thanks!

2:29 PM, March 18, 2005  
Blogger Esther said...

Tom, you know I have issues with this... and we disagree on the following but this is again where I wish to rely on a case-by-case basis. You know I'm itching to see Mr. Underage Beltway Sniper snuffed out asap -- I don't care how young that animal is, he was into killing, tried to escape while being questioned by the cops and is unrepentant. For him alone, I want the death penalty to not only be legal but UTILIZED.

9:12 PM, March 18, 2005  
Anonymous Jonathan said...

So long as the death penalty is applied in accordance with ever-shifting guidelines, its application is by definition arbitrary. It is entirely possible that within five or so years, another entire catagory of persons will be declared either eligible or ineligible for this punishment, be it based on age or on a physical or mental condition. Deprivation of liberty is one thing, but deprivation of life should not be so inconsistently imposed.

3:30 PM, March 21, 2005  

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