[Paleopsych] NYT Op-Ed: Cruel and Unusual Jurisprudence

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Cruel and Unusual Jurisprudence
http://www.nytimes.com/2005/03/04/opinion/04weisberg.html

[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
    Stanford, Calif.

    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
    it.

    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
    rest."

    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.