Jewish World Review March 7, 2005/ 26 Adar I, 5765

Jeff Jacoby

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A phony ‘consensus’ on youthful killers | Now that the Supreme Court has rendered its decision in Roper v. Simmons, the debate over capital punishment for murder committed by juveniles is closed.

In the 20 states whose laws didn't previously rule out the death penalty for juvenile killers, the laws will be changed. Around the country, 72 convicted capital murderers who were not yet 18 when they committed their crimes are being removed from death row. When the Supreme Court speaks, the legal system falls in step. The United States has not reached anything like a settled view on this subject, but that no longer matters. Five justices have declared that the Eighth Amendment's ban on "cruel and unusual punishment" forbids the execution of murderers who were juveniles when they killed. And that, under our system, is that.

A good thing? Not when it comes to an issue on which public opinion is as fluid as capital punishment. The Roper majority purported to ground its ruling in the nation's "evolving standards of decency," which it says have led to a "national consensus" against the execution of juvenile murderers. Even if there were such a consensus — and there clearly is not — there is no reason to believe that it is chiseled in granite.

But by deciding that public opinion has moved decisively on this question, then grafting that decision onto the constitution, the court has stripped lawmakers of the right to someday change their minds. Yet when has legislative support for capital punishment ever been static? As Justice Antonin Scalia notes in his dissent, it "has surged and ebbed throughout our nation's history."

In the years after World War II, for example, there was a dramatic fall-off in executions, as many states went through a phase of abolishing or restricting capital punishment. For several years beginning in 1968, in fact, executions came to a halt.

By the logic of the Roper majority, the Supreme Court could have declared back then that "evolving standards" had reached a "national consensus" in favor of eliminating the death penalty once and for all. In hindsight, we know that any such declaration would have been ludicrous — within a few years, support for the death penalty had soared. "But had this court then declared the existence of such a consensus, and outlawed capital punishment," wrote Justice Sandra Day O'Connor in a 1988 opinion quoted by Scalia last week, "legislatures would very likely not have been able to revive it. The mistaken premise of the decision would have been frozen into constitutional law."

Of course, standards of decency do evolve. There are punishments, once common, that a true national consensus now firmly rejects — public flogging, debtor's prison, the stocks.

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But the court's evidence for a consensus against the death penalty for those who murdered before their 18th birthday is pitifully thin. In recent years, it notes, executions of juvenile murderers have been few and far between, and five states that used to allow it no longer do. That's a "national consensus"? Executions of any murderers are few and far between — of the more than 15,000 homicides committed each year, no more than a few dozen result in a death sentence. And if five states recently raised their death penalty age to 18, four other states, as the dissent points out, recently set theirs at 16. The bottom line hasn't changed: Fewer than half of the states that permit capital punishment restrict it to killers who were 18 or older.

It is hard to read the majority opinion and not conclude that five justices ruled capital punishment of juvenile murderers unconstitutional simply because they oppose it personally. Their arguments are the familiar ones: Juveniles tend to be more immature and irresponsible than adults, they are more susceptible to bad influences, and their character is less well formed. All obviously true — as a rule.

But just as obviously true is that there are exceptions to the rule. The average 17-year-old criminal may be less culpable than the average adult criminal, but who would deny that some 17-year-olds can act with depravity and ruthlessness far beyond their years? As six states noted in a short but chilling friend-of-the-court brief,"there is no magic in the age 18. Just as there are adults who, for whatever reason, cannot fully comprehend the wrongfulness of their actions, there are adolescents— 16-and 17-year-olds— who can." The 17-year-old in Roper v. Simmons, for example. Christopher Simmons bragged in advance that he could commit murder and "get away with it" because of his age. He and his accomplice broke in on Shirley Crook in the middle of the night, hog-tied her with duct tape and electrical wire, and then threw her off a bridge, still conscious, to a terrifying death in the river below.

Youthful savages like Simmons may be rare, but they exist. Nothing in the Bill of Rights requires us to pretend otherwise. In almost every state, 16- and 17-year-olds can be treated as adults when it comes to noncapital crimes — up to and including homicide. Whether capital murder should be an exception is certainly a debatable issue. It should never have been a constitutional one.

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Jeff Jacoby is a Boston Globe columnist. Comment by clicking here.

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