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March 06, 2005

Decency

I'm no legal scholar, but there are certain things that I don't understand about the some right-wing critiques of the so-called "evolving standard of decency."  The critiques have reared their head again in the wake of the Supreme Court decision outlawing execution of juveniles.  Just two things for now, both said by Jeff Jacoby:

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.

My question, I suppose, involves this: when deciding whether or not someone is old enough to be executed, I'm not particularly inclined to take opinions by people who don't know anything about the subject very seriously, including my own.  I don't know anything about psychology.  I don't know about the clinical differences between 16 year olds and 18 year olds.  Most people don't, and so it's hard to trust that the idea that an informed decision about whether 16 year olds, say, are culpable enough to be executed for a crime can be made by a large population.  I don't mean to be un-democratic, but when talking about an evolving standard of decency, surely the fact that not all state legislatures have outlawed something shouldn't be the end of the discussion.

It is hard not to conclude that five justices ruled capital punishment of juvenile murderers unconstitutional simply because they personally oppose it. Their arguments are the familiar ones: Juveniles tend to be more immature and irresponsible than adults, they are more susceptible to bad influences, 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?

Well, sure, but this is really not a legal argument.  Some 17-year-olds are smarter than others.  Some 18-year-olds know things, and some don't, but we still let them all vote.  It seems to me that a standard that allows one judge or one jury (it is only a jury that can hand down a death sentence these days?) to arbitrarily decide that this 16-year-old is more precociously evil than this one is much more unclear than a general "evolving standard of decency."

-- Michael 

March 6, 2005 | Permalink

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Comments

It is astounding to me that anyone could oppose this Supreme Court ruling. The USA has certainly fallen far from the standards set for us when that is the case.

There is a strong punitive movement in this country, led, of course, by the hyper-self-righteous religious right. They are more interested in who is doing something wrong and making sure that everyone who ever does something wrong is severely punished than they are in making sure that everyone's rights are protected. Are there some 16, 17, even 12 year olds who are capable of great evil, of malice aforethought? Yes. But the plain fact is that most people under the age of 18 have not yet arrived at a level of maturity where they can legitimately be treated as adults. To treat them in this way is barbaric.

Our legal system was set up so that the rights of the innocent are protected above the the punishment of the guilty. It is far better, to me, that some who are guilty go free than to see even one innocent person suffer incarceration, or worse, death, at the hands of the state.

Of course, those who are so in love with making our system more and more punitive are those who, up to now, are the least likely to have brushes with the law. But as more and more behavior is criminalized, they will soon feel what it is like to suffer at the hands of their own creation.

Small consolation for those who are suffering in it now.

Posted by: Stephen | Mar 6, 2005 3:24:51 PM

I was talking about this decision the other night with a friend of mine, and he mentioned a study (sorry, he didn't provide details) that was published recently demonstrating that the portions of the brain that are responsible for judgement and evaluation do not fully mature until the mid-20s or later. If his characterization and recollection of the study is correct (and I have no reason to believe they weren't), I'd say that was a pretty solid reason for not executing juveniles.

Then again, I'd also say there's ample reason for not executing anybody, so what do I know?

Posted by: Musing Michael | Mar 6, 2005 4:27:25 PM

I have read details of the same study. There is also a growing understanding that the brains of young teenagers go through a process similar in scope to those of 2-3 year olds; basically the brain rewires itself as the person goes through puberty. That's why so many young teens start to have judgment and emotional difficulties where there were none before; they have to figure out how to live all over again.

We also have to understand that we, as a society, have artificially created this thing called "adolescence," and have started to prolong it. It used to be that children graduated to adulthood at the onset of puberty, then at the end of high school, now at the end of college and we are in the process of extending it further. Our actions as a culture do have a profound impact upon the physicial development of our brains and therefore our emotional development.

What we have is the same people who constantly whine about how Hollywood and the schools are exposing their precious young ones to things they just aren't ready for are also the ones who want little kids to be tried and punished as adults.

I'm beginning to think that the most amazing ability of the human species is our incredible tolerance for cognitive dissonance.

Posted by: Stephen | Mar 6, 2005 8:25:08 PM

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Posted by: JEROGatch | Sep 3, 2006 3:31:01 AM

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Posted by: peter.w | Sep 15, 2007 5:40:54 AM

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