Juvenile Death Penalty
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GWEN IFILL: The court split 5-4 over today’s decision to outlaw the death penalty for 16- and 17-year-olds. The debate among the Justices, laid out in the ruling and in dissents, covered issues of life, death, and morality.
Here to provide us with some insight into this landmark decision, as always, is NewsHour regular Jan Crawford Greenburg, Supreme Court reporter for the Chicago Tribune.
Jan, last October you and I sat at this table and talked about the arguments in this case. And I went back today to find out what you said. You said at the time that you expected one of the key justices on who this would turn would not be Justice Sandra Day O’Connor who was largely silent during the arguments, but it would be Justice Anthony Kennedy. And that’s the way it turned out. So, let’s talk about your prescience and what it was that Justice Kennedy concluded.
JAN CRAWFORD GREENBURG: Well, we knew that before the court took up the case four of the court’s more liberal justices had opposed this practice. They said in 2002 that the court should put an end to what they said was a shameful practice of the government executing people who murder at age sixteen or seventeen.
So, we were looking to the justices in the middle, the ones that we often turn to, Justice Kennedy, Justice O’Connor. At argument back in October, O’Connor was strangely quiet, but Kennedy was not. He made clear from his questions that he had deep concerns about states executing people who murder when they’re younger than 18. He was troubled that the United States, perhaps, stood alone in the international community.
The vast weight of world opinion was against the United States on this issue. And so here he was today announcing the opinion from the bench. Now that surprised me. I did not expect him to write this opinion. It is sweeping in scope, sweeping in tone, and it flatly rejects the arguments that states and juries should be able to make these decisions.
He says no, there’s a consensus in the states against this practice, as there should be. There’s no reason, no good reason for states to execute juveniles, and, he says, the weight of the world is against the United States.
GWEN IFILL: It sounded kind of like a dramatic time in the court today because Justice Scalia made an oral dissent from the bench, which was pretty rare.
JAN CRAWFORD GREENBURG: It was. It was quite dramatic in the courtroom. Justice Kennedy forcefully explained his views and why he believed the majority was absolutely correct in this very narrowly divided ruling today.
Justice Scalia again forcefully and in quite harsh language at times saying that Justice Kennedy was making a mockery of the Constitution, ignoring the wishes of the citizens of the United States and paying attention to the views of foreigners. His language and tone was quite forceful from the bench. And the opinion, this opinion is long. It is intense. It’s fascinating to see these debates play out in the pages of these court opinions.
This is an issue that deeply divides this court, just as it divides society. This is an issue that is playing out in Congress and in state legislatures. And today it deeply divided the court 5-4. Justice O’Connor also wrote a separate dissent. She had been with the majority three years ago when the Supreme Court said that states could not execute the mentally retarded, people who are mentally retarded and kill. Today she went with the three more conservative justices for the four-vote minority.
GWEN IFILL: But she did it for a slightly different reason.
JAN CRAWFORD GREENBURG: She was not as forceful as Justice Scalia. Her language was not as strong. She didn’t take issue with looking to world opinion to guide the court. But she agreed with Justice Scalia that there was not a real consensus against this practice. There had not been a wave of legislation, a wave of states walking away from executing juveniles as they had seen in the context of mentally retarded three years ago.
GWEN IFILL: And was she also concerned, as was Justice Scalia, that in the particular case they were being asked to decide this was a 17-year-old who had gagged a woman, kidnapped her and thrown her off the bridge.
JAN CRAWFORD GREENBURG: The facts in this case are horrific. Justice Kennedy outlined them today before he began announcing the court’s reasoning saying you can’t dispute the facts are terrible. There’s no dispute that this person committed this crime.
To Justice Kennedy and the majority, in analyzing this opinion, now keep in mind this is under the Constitution’s 8th Amendment which prohibits cruel and unusual punishment. When a court is trying to decide whether something is cruel and unusual, it looks to evolving standards of decency.
To Justice Kennedy and the majority today, society has evolved to a point where it considers execution of juveniles to be cruel, to be unusual. And Justice Kennedy went farther than that. He said there’s no reason to execute juveniles. Juveniles aren’t as responsible. They’re not as culpable. They’re different than adults. And so therefore the reasons that we have for the death penalty, the reasons that the court has affirmed it in the past, retribution and deterrence, those aren’t as compelling. Those lack force in the context of juveniles regardless of what this person did.
O’Connor didn’t see it that way. Scalia didn’t see it that way. Justice O’Connor said, a 17-year-old can be just as mature, just as responsible, as an adult. And the facts of this case suggest that perhaps this man was as mature, was as responsible. Those decisions, she said, should be left to juries, to state legislatures. It’s not the business of the Supreme Court to make that call.
GWEN IFILL: Immediate effect. There are 19 states, which still have a juvenile death penalty. The court had already said under age 15 that was cruel and unusual so this really just affects that little window.
JAN CRAWFORD GREENBURG: Sixteen and seventeen-year-olds, that’s right.
GWEN IFILL: So how many people are affected?
JAN CRAWFORD GREENBURG: Seventy-three people have been on death row when this litigation started. Those will immediately now get life sentences. It also will affect prosecutors who are seeking to charge people who are sixteen and seventeen when they commit crimes.
The Washington area sniper case, one of the defendants in that case was 17. So, they had been seeking the death penalty for that person. Obviously now he will be facing the life in prison.
GWEN IFILL: And in the future, this is ruled out. This can never happen again.
JAN CRAWFORD GREENBURG: Well, that’s a great point. And that’s one that the dissenting Justices talked a lot about. Justice Scalia said, right, four states’ legislatures since we last thought about this issue in 1989, have said you can’t execute juveniles. That’s not a trend, he said. That’s not a consensus.
And even so, those four states probably wouldn’t have changed their laws if they knew we were going to rule this way today because once you rule this way, there’s no going back. The court is not going to at some point say, he said, that you can now. We changed our mind. You can go ahead and execute people who are under 18.
GWEN IFILL: Jan Crawford Greenburg, thanks for taking us inside the court again.
JAN CRAWFORD GREENBURG: You’re welcome