The Court Takes Another Step in Reshaping Capital Punishment

“After a decade of relative quiet, the Supreme Court has in the last several years fundamentally reshaped the nation’s capital justice system.

It has narrowed the class of people eligible for execution, excluding juvenile offenders yesterday as it had previously the mentally retarded. It has rebuked lower courts for sending people to their deaths without adequate safeguards. And it has paid increasing attention to the international opposition to capital punishment.

…Supporters of the death penalty said they were braced for further, incremental attacks on the use of capital punishment – whether it should be applied to the mentally ill, older teenagers and defendants claiming racial discrimination.

‘The next battle is the mentally ill,’ said Prof. Robert Blecker of the New York Law School. Given the decisions on the mentally retarded and on juveniles, Professor Blecker said, ‘it has a certain appeal.’

Professor Blecker said he also expected opponents of the death penalty to try to move up the age separating juveniles from adults. In 1988, the Supreme Court set the line at age 16. Yesterday, it rose to 18.

‘The interim attack may be to go after the so-called teenage death penalty, so they’ll go after 19-year-olds,’ he said. ‘Then they will redefine juveniles to say it should extend to those under 21.'” (New York Times )

This is a good day for moral responsiveness. I continue to be amazed and puzzled that this court rules so justly on issues of capital punishment.This decision is particularly responsive to changing moral standards, the US being the only nation in the world (with the possible exception of Iran) to execute minors. International opposition to the juvenile death penalty was discussed at length in Justice Kennedy’s majority opinion. One of the grounds for the minority’s dissenting view was that the US should not be basing its judicial principles on unAmerican standards, essentially, and that the founding fathers did not want a relativistic morality that could change with the times and especially not with changing world opinion. Needless to say, this is brought to you straight from the Neanderthal cronies of the authors of Abu Ghraib. However, if we were to be swayed by the weight of world opinion, it would be more responsive to ban the death penalty altogether. It’s hard to like the company we keep with regard to those nations that kill their own citizens.

The projection that the age limit for execution may continue to rise even above 18 is a reasonable one, as the arguments about the immaturity of the adolescent nervous system and the consequences that has for responsibility for one’s actions certainly have no cutoff at the 18th birthday. Similarly, certain mental illnesses impair criminal responsibility in analogous ways. I would welcome a ban on executions of patients with major mental illnesses,, knowing full well that the public’s fear and loathing of psychiatric patients means there is far less of a constituency for such a restriction than there is for banning the execution of minors. Moreover, if we think we are opening up a pandora’s box of uncertainty in how to determine exclusion from the death penalty on the grounds of mental retardation, just wait and see how contentious an assertion of the mental illness exemption would be.

Although it would be perhaps the thorniest issue for the Court to grapple with, everybody knows the American justice system is inherently inequitable with regard to the race of the defendant. Let us hope that the current momentum translates into a fresh look at whether, as the Times article puts it, racial biases in applying the death penalty ‘offend the Constitution.’ Procedural safeguards, such as ensuring adequacy of representation and excluding prosecutorial misconduct in death penalty cases, need revisiting as well.