Wide Divide On Juvenile Justice

Anthony Kennedy, Supreme Court Justice, Building
Attorney Andrew Cohen analyzes legal issues for CBSNews.com and CBS News.
In sweeping language and over angry dissent, the Supreme Court struck down capital punishment laws for juvenile offenders, ruling that the Constitution does not permit states to execute murderers who were 16 or 17 when they killed.

The decision raises the minimum age for death-penalty eligibility to 18, immediately spares the life of dozens of death row inmates, and voids laws in 19 states. And it means that Christopher Simmons, a nasty young killer who brutally kidnapped and murdered Shirley Crook in 1993, now goes into history along other notorious litigants who have unwittingly changed the face of American law.

The 5-4 ruling is by far the most important of the Court's current term. It represents a continuation of a trend the Justices began several terms ago when they voided laws that permitted the execution of mentally retarded murderers.

It's a reflection of new studies that indicate that teenagers are not as fully developed mentally and emotionally as adults. It's a nod to an international consensus against the execution of young offenders. It is further proof that the pendulum over capital punishment is swinging back toward a more restrictive view of the practice. And it's surely a decision that will inflame political, cultural and legal passions.

The decision to throw out a capital conviction in Missouri brought out the Court's deepest ideological divide. Justice Anthony Kennedy, one of the more moderate Justices, represented the swing vote in the case. He wrote the majority opinion. Representing the Court's left wing, Justice John Paul Stevens wrote a short supporting concurrence. Representing the Court's right wing, Justices Antonin Scalia and Sandra Day O'Connor both wrote strong dissents. Justice Scalia, in particular, launched a stinging assault on the majority's motives and rationale.

Justice Kennedy, who authored the court's last highly controversial ruling in 2003 that struck down Texas's anti-sodomy law, found himself again at the center of the fight.

Citing the Court's 2002 ruling that outlawed the execution of mentally retarded murderers, Justice Kennedy first wrote that death penalty law and the "cruel and unusual punishments" clause of the Eighth Amendment to the Constitution require the Justices to evaluate "society's evolving standards of decency" in order to ensure that punishments are not excessive. The court must look for a national consensus on those standards of decency and then "determine, in the exercise of our own independent judgment, whether the death penalty is a disproportionate punishment for juveniles."

The majority first found that there was a "telling" national consensus against the execution of juvenile murderers; a trend "similar, and in some respects parallel" to the consensus the Court found in 2002 to outlaw the execution of mentally retarded murderers.

Since 1989, when the Court last looked at juveniles and the death penalty, five states have specifically precluded capital punishment for juvenile offenders. No states have added juveniles within the class of capital defendants eligible for the death penalty. Moreover, Justice Kennedy found, even those states that technically permit the practice have shied away from executing murderers who were 16 or 17 when they killed.

The majority ruling next offered a rationale for treating 16- and 17-year-old offenders differently from adults. Citing studies and what "any parent knows," Justice Kennedy noted that juveniles are comparatively immature and irresponsible compared with adults and thus prone to "reckless behavior" and "negative influences and outside pressures, including peer pressure."

Moreover, relying on another study, Kennedy wrote that "the character of a juvenile is not as well formed as that of an adult." These factual underpinnings led the majority to conclude that "from a moral standpoint it would be misguided to equate the failings of a minor with those of an adult, for a greater possibility exists that a minor's character deficiencies will be reformed."

Furthermore, Kennedy continued, "whether viewed as an attempt to express the community's moral outrage or as an attempt to right the balance for the wrong to the victim, the case for retribution is not as strong with a minor as with an adult. Retribution is not proportional if the law's most severe penalty is imposed on one whose culpability or blameworthiness is diminished, to a substantial degree, by reason of youth and immaturity." Especially for a young person, he added, a life sentence without the possibility of parole "is itself a severe sanction."

Finally, and perhaps most controversially for the legal isolationists among us, the majority acknowledged the impact that foreign law has on the debate. "The United States is the only country in the world that continues to give official sanction to the juvenile death penalty," Justice Kennedy wrote. "This reality does not become controlling...but the Court has referred to the laws of other countries and to international authorities as instructive for its interpretation of" the Eighth Amendment." In this case, he added, "the opinion of the world community, while not controlling our outcome, does provide respected and significant confirmation for our conclusions."

Justice Scalia ripped into each element of this analysis. In his view, the majority's ruling made "a mockery" of the tradition of precedential restraint. The Court, Scalia wrote, "proclaims itself the sole arbiter of our Nation's moral standards" and has implausibly declared that the "Constitution has changed" over the past 15 years since the Justices last revisited the issue of a juvenile death penalty. "Words have no meaning," Scalia continued, if the Court can find a "national consensus" on the issue when less than half the states that permit capital punishment forbid its use against juveniles. "All the Court has done today, Scalia continued, "... is to look over the heads of the crowd and pick out its friends."

Using words and phrases like "transparently false," "subjective views," "misleading," "nomological desperation," "usurpation," "scant support," "startling conclusion," "false generalization," and "sophistry," Scalia warned that the majority's ruling could have severely negative consequences for future cases. By looking to foreign law to help guide their decision, and by permitting a lower court (the Supreme Court of Missouri) to initially alter the scope of death penalty law, the Court was opening itself up to a result that "will crown arbitrariness with chaos."

Scalia hasn't written as angrily since the Court's sodomy ruling two years ago. And surely the tone and tenor of his language won't help him in his quest to succeed Chief Justice Rehnquist as the Court's leader. After all, it's hard to lead a group for which you've just expressed so much disdain. On the other hand, it's hard to see how Justice Kennedy, another contender for the Chief Justice spot, could have helped himself politically by coming down so strongly for a position that the current Administration is bound to oppose.

The third contender for the top spot, Justice O'Connor, not surprisingly, was more diplomatic in her criticism of the majority's ruling. She would "demand a clearer showing that our society truly has set its face against this practice before reading the Eighth Amendment categorically to forbid it." In other words, she, like Scalia, isn't convinced that there is a clear enough national consensus against the execution of juvenile defendants to warrant the Court's momentous reversal of course. Moreover, Justice O'Connor was not convinced that the evidence of the mental and emotional differences between adults and teenagers supported the conclusions reached by the majority.

O'Connor, the former state legislator, wrote: "Adolescents as a class are undoubtedly less mature, and therefore less culpable for their misconduct, than adults. But the Court has adduced not evidence impeaching the seemingly reasonable conclusion reached by many state legislatures: that at least some 17-year-old murderers are sufficiently mature to deserve the death penalty in an appropriate case. Nor has it been shown that capital sentencing juries are incapable of accurately assessing a youthful defendant's maturity or of giving due weight to the mitigating characteristics associated with youth." it's clear that Justice O'Connor wants to keep juvenile death penalty law the way it is; with legislators setting up the rules and judges and juries enforcing them.

The last word of the day goes to Justice Stevens, the Court's oldest member. Responding to Scalia's assault on the majority ruling, Justice Stevens wrote: "In the best tradition of the common law, the pace of the evolution (of standards of decency in Eighth Amendment) is a matter for continuing debate; but that our understanding of the Constitutional does change from time to time has been settled since (the fourth Chief Justice) John Marshall breathed life into its text. If great lawyers of his day -- Alexander Hamilton, for example -- were sitting with us today, I would expect them to join Justice Kennedy's opinion for the Court. In all events, I do so without hesitation." Sounds like Justice Kennedy has Justice Stevens' vote for the top spot on the Court.

By Andrew Cohen