Tampa Tribune

Editorial

FLORIDA: When Does the Death Penalty Become Cruel And Unusual?

At the beginning of the summer, the U.S. Supreme Court outlawed executions of the mentally retarded.

 The court declared the imposition of the ultimate penalty unconstitutional as to killers found to be retarded because the punishment violates the Eighth Amendment proscription against cruel and unusual punishments.

 Critics of the death penalty hailed the decision and announced they would press the same arguments to defeat state laws that allow capital punishment for murderers who commit their crimes as minors.

 The state of Texas last week executed a man who committed his crime at age 17 after the Supreme Court refused to stop the sentence from being carried out.

 But 3 justices dissented, allowing that they would have prevented the execution until the court could review whether "the evolving standards of decency that mark the progress of a maturing society" would render the imposition of the death penalty in such cases unconstitutional.

 Interestingly, the same three justices - John Paul Stevens, Ruth Bader Ginsburg and Stephen Breyer - said just the opposite when they were in the majority that banned executions of the mentally retarded in June. The court relied on what they said is a legislative trend toward banning the death penalty as it applies to the mentally retarded because 18 of the 38 states that have the death penalty, including Florida, have done so.

 Conflicting Consensus

 Justice Stevens said then that a consensus has emerged against execution of the mentally retarded but not against youthful offenders. Yet last week he wrote that there is now an "apparent consensus ... among the States and in the international community against the execution of a capital sentence imposed on a juvenile offender."

 He seemed, as Columbia law Professor Michael C. Dorf points out, to directly contradict himself. "There was no national consensus in June, but now - despite no intervening legislative changes - there is?" Dorf asked.

 Dorf offers several theories about what is going on at the court, the most plausible being that the three justices never cared about a national consensus. "Maybe they believe, on subjective moral grounds, that executing youthful offenders is simply wrong," Dorf says.

 Is that not the very definition of judicial activism?

 Dorf's speculation meshes with the theories proffered by the dissenters in the June case when Chief Justice William Rehnquist and Justices Antonin Scalia and Clarence Thomas derided the notion of a national consensus. How could the court claim a consensus, they asked, when less than half of the death penalty states outlawed executing the mentally retarded? Scalia, especially, has long argued against what he has called "death-is-different jurisprudence," in which the court makes its determinations based "upon nothing but the personal views" of its members.

 In an address delivered in January at the University of Chicago Divinity School and published in the May edition of First Things journal, Scalia discussed the morality of capital punishment. He argued that the court has imposed, "under color of the Constitution, procedural and substantive limitations that did not exist when the Eighth Amendment was adopted."

 The constitutionality of the death penalty is not, for him, "a difficult, soul-wrenching question'' because the Framers did not think death a cruel and unusual punishment. For Scalia, the death penalty is constitutional because it was at the Constitution's writing.

 "There is plenty of room within this system for `evolving standards of decency,'" Scalia said, ``but the instrument of evolution (or, if you are more tolerant of the court's approach, the herald that evolution has occurred) is not the 9 lawyers who sit on the Supreme Court of the United States, but the Congress of the United States and the legislatures of the 50 states, who may, within their own jurisdictions, restrict or abolish the death penalty as they wish."

 But death penalty opponents would have the court do such legislating for them. They will argue that murderers who kill before they reach age 18 are somehow more redeemable because of their age. But such arguments are specious. How can it be that the death penalty for a criminal who killed the day before his 18th birthday would be cruel and unusual and yet be justified the day after?

 Teenagers Understand Evil

 Killings by older teenagers who understand the consequences of murder and the evil of it cannot be equated with killings by the mentally retarded. We supported the Florida legislature's decision to ban executions of the mentally retarded, but as long as the death penalty is legal, a similar ban for 17-year-olds is more problematic.

 Florida is 1 of 5 states that allow the execution of defendants who were 17 when they killed. Eighteen states allow for capital punishment for killers as young as 16. Today the federal government and 15 states do not permit the death penalty for minors. This hardly suggests a national consensus.

 If the state continues to favor the death penalty as the ultimate punishment, it is not irrational to consider age in sentencing. But it is not uncivilized to conclude that a 17-year-old should pay with his life for committing the worst of crimes.

 "There is something to be said for popular abolition of the death penalty," Scalia has written. "There is nothing to be said for its incremental abolition by this court."