[Paleopsych] NYT Op-Ed: Cruel and Unusual Jurisprudence
checker at panix.com
Mon Apr 18 19:41:43 UTC 2005
Cruel and Unusual Jurisprudence
[I cannot decide about capital punishment, since I can't weigh the merits
and demerits of the various sides and doubt I'll be getting a weighing
instrument any time soon. But this argument is novel. If you're interested
in the matter, I commend it.]
By ROBERT WEISBERG
BOTH the result and the reasoning of the Supreme Court's decision this
week in Roper v. Simmons were heartening to opponents of capital
punishment. Not only did the court outlaw the death penalty for those
who kill before they turn 18, but its analysis could easily lead to
additional constitutional constraints on capital punishment.
Yet it is doubtful that the court will follow the national trend of
skepticism about the death penalty any further. More likely, the case
is the last exhausted gasp of a very strange jurisprudence that the
court will now be happy to put to rest.
The Eighth Amendment prohibits "cruel and unusual punishments," but
for much of its history the United States has allowed the death
penalty. In 1958, the court ruled that "evolving standards of decency"
should define what constitutes "cruel and unusual," and since then it
has been forced to confront the legality of capital punishment in
various types of cases. Could the death penalty be imposed for
nonfatal crimes? When the defendant did not kill intentionally or at
least in a manner exhibiting "extreme indifference to human life"?
In answering these kinds of questions (in both of these cases, the
response was no), the court committed itself to a challenging set of
tasks. First, it would examine the patterns of state laws or court
decisions to determine by a rough empiricism whether the death penalty
in a particular category has become cruel by virtue of being literally
unusual. Of course, this approach raises the perfectly reasonable
question of how the scope of the Bill of Rights, which was designed to
limit the powers of legislative majorities, could depend in part on
the decisions of those very majorities.
Next, the court would consult various other sources for evidence of
some sort of moral consensus. In doing so, the court would refer to
philosophical or moral principles or political attitudes outside the
realm of law altogether - and even to international expressions of
moral value. This strategy provokes the (again perfectly reasonable)
complaint that unelected jurists are now acting like pollsters,
assessing the public's moral values. Or, worse, they are becoming
arbiters of moral value themselves.
Three years ago the court used this approach, looking at trends among
the states as well as the scientific consensus on the definition and
significance of retardation, to strike down executions of the mentally
retarded. And this week the court reconsidered how this test applies
to the question of age. In 1988, it ruled that defendants who killed
before their 16th birthday could not be executed; now the age is 18.
As in earlier cases, the court looked at trends among the states and
at legal, scientific and philosophical understandings about when
people are mature enough to forfeit their lives for their crimes. What
was notable was how candid the court was about two factors that
influenced its judgment: the justices' own notions about the morality
of executing young killers, and the international condemnation of
executing people for crimes committed when they were juveniles.
Justice Antonin Scalia was practically apoplectic in his exasperated
dissent. "This is no way to run a legal system," he wrote, denouncing
this latest round of trend-spotting as irrational and unreliable. And
indeed, the change in attitudes toward age has been far less evident
than the change in attitudes toward retardation.
Given Justice Scalia's analytic dexterity and rhetorical brilliance,
his dissent is utterly convincing. But it is also completely beside
the point. In Roper, the court exposed its somewhat intellectually
embarrassing Eighth Amendment jurisprudence. But it did so in order to
overcome the greater embarrassment of one last specific, egregious
category of capital punishment.
Having noted that only the United States and Somalia had refused to
ratify a United Nations convention barring the execution of juvenile
criminals, the court's decision comes down to this: on matters of
criminal punishment, the United States "now stands alone in a world
that has turned its face against the juvenile death penalty." Justice
Scalia scorns the court's deference to "the so-called international
community" and self-appointed role as the "authoritative conscience of
the nation." Yet instead of denying the charge, the court revels in
At any rate, there is little prospect of more tortured Eighth
Amendment jurisprudence. Executing the mentally ill? The universal
availability of some kind of "not guilty by reason of insanity"
verdict, and the established constitutional rule that states cannot
execute someone "presently insane," mean that this category need not
be litigated. Executing those under 21? In Roper, the court was
unusually categorical: "The age of 18 is the point where society draws
the line for many purposes between childhood and adulthood. It is, we
conclude, the age at which the line for death eligibility ought to
Of course, America retains its outlier status, at least compared with
most democratic nations, as a nation that allows the death penalty at
all. And the court may issue some further decisions fine-tuning
procedures or standards of proof for the use of the death penalty, or
requiring enhanced guarantees of adequate representation for capital
defendants. It would probably take a truly horrifying event, like a
post-execution exoneration through DNA evidence, to sway public
opinion so much against the death penalty that the court would
consider declaring the practice itself unconstitutional.
For now, opponents of capital punishment can hope that
state-legislated improvements in criminal procedure and technology,
along with political constraints, will address their concerns about
wrongful executions. That way, the court will be spared the
awkwardness of returning to the cruel and unusual task of assessing
America's evolving standards of decency.
Robert Weisberg is a professor of law at Stanford.
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