Instability and emotional imbalance

The Supreme Court rules that people who were 16 or 17 when they committed their crimes cannot be executed, because of the “instability and emotional imbalance” that produced their crimes. But if you want proof that instability and emotional imbalance are not the exclusive property of adolescents, you have only to read Antonin “Fat Tony” Scalia’s dissent (warning: pdf).

In a footnote, he says that the standard for the 8th Amendment should be what was legal in 1789 when “the death penalty could theoretically be imposed for the crime of a 7-year-old.” The standard the Supreme Court established the last time it dealt with this issue in 1989 took as proof of public support of a death penalty the passage by a state legislature of a law. In other words, a law allowing execution of minors was constitutional because there was a law allowing execution of minors. In 2005, with several states having revoked such laws, the Justices are debating which states have a vote. Scalia denies that states with no death penalty for anyone should be counted as opposing the death penalty for minors. That, he says, would be like including the Amish “in a consumer-preference poll on the electric car.”

The annoying thing is, I found myself in partial agreement with Fat Tony: by making the standard of what constitutes “cruel and unusual” dependent on evolving standards, the Court’s majority made itself a weather vane -- “a mirror of the passing and changing sentiment of American society regarding penology” in Scalia’s words -- and you can see that in the way it cherry-picked the evidence it used to support its claim that there is a consensus against executing kids that didn’t exist 15 years ago, including taking into account international standards, which Scalia correctly points out are not considered for other constitutional issues such as abortion and the separation of church and state. Of course using the community standards of the 18th century is also stupid. And so is Fat Tony’s other idea, leaving it up to the jury to consider. One of the problems with the death penalty is that people who oppose the death penalty are excluded from juries in capital cases, so those juries don’t represent community standards.

In truth, I don’t care if there is or is not a “national consensus” on executing juveniles, and I don’t much care if the Supreme Court uses intellectually dishonest arguments to ban the practice, as long as it gets banned.