"Juvenile Death Penalty Unconstitutional"

I quote the title verbatim from the CNN.com piece, but not because it's accurate. No one is trying to execute minors, the legal question is whether a State can execute an adult who committed a crime while a minor. I've mentioned before that although I grew up accepting the death penalty, I'm now on the fence. I actually believe the death penalty is constitutional, but that doesn't necessarily mean it's a good idea. To say that States may impose the death penalty is not to say they should.

The Constitutional argument against the death penalty is based on the Eighth Amendment, which prohibits cruel and unusual punishments. But the Fifth Amendment, in my opinion, cannot be reasonably read as providing other than that the death penalty is a power vested in the government. The Fifth Amendment says "No person ... shall be ... deprived of life, liberty, or property, without due process of law..." If the Constitution imposes an express limit on government power to do something, that must imply that the government has that power. Absent an amendment, I would never find the death penalty unconstitutional.

But that's not to say that government should use that power. And it's certainly not to say they should use it to put to death those who were minors at the time of their crimes.

The Supreme Court case is Roper v. Simmons. It seems that Christopher Simmons told two of his friends that he planned on committing a murder, and that he could get away with it because he was a minor. He planned the crime in detail several days before. He broke into a woman's house, covered her eyes, mouth and hands with duct tape, and drove her to a state park. There, he and a friend covered her head with a towel, walked her to the middle of a bridge, tied her wrists and ankles with electrical wire, covered her whole head in duct tape, and threw her into the river below, where she drowned.

The next day, Simmons was heard bragging about killing the woman.

At trial, his attorney asked the jury to consider his age, and to show mercy because he was so young. The prosecutor then responded, "Age, he says. Think about age. Seventeen years old. Isn't that scary? Doesn't that scare you? Mitigating? Quite the contrary I submit. Quite the contrary." The jury, of course, voted for death.

The Missouri Supreme Court overturned, pointing out that the juvenile death penalty is highly disfavored - it has been abolished in 18 states, and 12 other states bar executions altogether. That's very poor reasoning, in my opinion. If there is a certain trend in one direction, there is no need for judicial intervention to impose a result on people who do not want it. If the juvenile death penalty is in such disfavor, then the people of the state can pressure their legislature to forbid it. But I digress...

Nothing in Justice Kennedy's opinion for the majority is surprising. He says we simply don't find the actions of minors as morally reprehensible as those of adults. Maybe Kennedy doesn't think the cold, calculated murder of an innocent woman is morally reprehensible, but many people do. And although I said I am on the fence about capital punishment, this is the kind of case that keeps me from completely rejecting it. The Supreme Court's test, by which Simmons' life has been spared, is simply to consider the proportionality of the punishment to the culpability of the offender. Because the Court finds that a minor can never have the level of culpability necessary to make a death penalty proportional, the death penalty must be rejected in all cases.

It cannot be seriously argued that Simmons didn't understand the gravity of his actions. He expressly told his friends that he could "get away with it." He knew it was wrong, and had an appreciation of the consequences. In many cases - for example, the Scott Peterson trial - I don't feel the death penalty is appropriate because the perpetrator is unlikely to prove a danger in the future. But Christopher Simmons has no future. He has no education, no job skills, no basic respect for human life. If he were to ever leave prison, he would be unemployable. The probability of such a soulless monster killing again strikes me as so high as to make his life worth nothing at all. And if he is left in prison for life, what further deterrent could possibly be assessed against him, should he choose to kill his fellow prisoners? Life in solitary confinement? Far more merciful to kill him than do that.

I reject all retributive arguments as futile. I have serious doubt about the healing power of vengeance, and certainly Christopher Simmons' death wouldn't being his victim back.

I also reject the argument that his death would serve as an example to other killers. The death penalty doesn't stop people from killing.

For me, it all boils down to a question of social benefit. If the gains to be had from his death outweigh the costs, then death is preferable. In the vast majority of cases, I think the social benefit will be insufficient to warrant a death penalty. But the protection of human life is sufficient, and people like Christopher Simmons are a danger against which society should protect us all.