Death penalties in the US

Created 3rd March, 2005 18:22 (UTC), last edited 14th March, 2006 04:48 (UTC)

Last year (2005 CE) wasn't all bad for the US on the human rights front. Extraordinary rendition frightened the living daylights out of many, and caused those of their supporters who still like to hold their heads up in public to shuffle their feet in embarrassment. There is of course also the on-going issue of Guantanamo Bay…

At least, though, they have now banned the execution of those who commited their crimes whilst minors (under 18) thanks to a 2005 Supreme Court ruling called Roper v. Simmons¹ [1There is no doubt that Christopher Simmons meant to kill Shirley Crook and the facts around her murder are not disputed. Simmons roped others into the plot and when caught re-created the scenes as part of his confession. At the time he committed the murder he was seventeen.The jury in giving a guilty verdict also imposed a death sentence (I suppose that allowing the jury to impose sentence on a convict is where all the trouble starts, but it certainly doesn't end there).Roper by the way is the name of the warder with legal responsibility for Simmons. His name is used in the case name, but the case is fought by the state.] which declares their execution unconstitutional (due to the Eighth Amendment—the one banning cruel and unusual punishment).

World view

The US still joins the salubrious company of Somalia as the only other country not to ratify Article 27 of the United Nations Convention on the Rights of the Child (although I'm not sure the two countries get along on many other basis). It has to be noted that Somalia has a good excuse in not ratifying as the country has no government. Whatever one thinks of the Bush administration and the closeness of the 2000 election it is not possible to claim that the US is not ratifying for lack of legal, recognised government.

For Europeans at least, the death penalty has been a thing of the past for many decades now. People my age don't remember it at all. Although there is a popular hankering for it, those who think about it for more than a moment realise that it causes at least as many problems as it solves.

European thinking now generally considers the death penalty as a simple matter of revenge and Europeans on the whole like to think that they've moved on beyond and above this sort of pettiness. In America however it seems to be viewed (at least in those states that still do it) as an expression of closure for the victim's family—you killed one of ours, we now kill you and so we can move on.

Of the American states though there are very few who do still execute felons (the British prisoner makes it sound too harsh as a prisoner may be innocent) and even fewer that will kill somebody for their actions whilst under the age of eighteen (it is this last that causes the problem with the UN's convention).

The Supreme Court

The Supreme Court in the US has recently been through quite a lot of change with the death of Chief Justice Rehnquist and the appointment of two new Justices.

The fact that world opinion (at least in the rich world) sees death penalties as a medieval practice (thankfully banished) does mean that we should expect our views to make any difference. One of the dissenters (Antonin Scalia) specifically stated that international norms should not be considered when interpreting constitutional matters (although his argument was more subtle than this implies). His take is to discount laws from outside jurisdictions and he criticizes (possibly disingenuously) the use of norms in the rest of the world to inform US law.

The retired Justice, Sarah O'Connor, also dissented. She acknowledged that international norms should have a bearing on the interpretation of the Eighth Amendment, but she doesn't believe that juveniles are that different to adults. The problem here is the wealth of medical research that shows that this is exactly the case. It is even worse during puberty as the parts of the brain responsible for handling our anger (the frontal lobes) shrink. In any case they don't fully develop until our mid-twenties.

What is even more unclear is what will happen now in the long term with two justices recently replaced and a real possibility of a third retiring² [2Justice Joyn Paul Stevens, will probably retire whilst Bush is still president (although there is of course a lot of speculation on this matter). He has already stated a preference to retire under a Republican administration and at the age of 85, he must be on his home straight.If he does retire in the next couple of years that means Bush and his father will have appointed five Justices between them. Not a bad record.] before the end of George W. Bush's Presidency. On this issue both Rehnquist and O'Connor dissented (although for different reasons) and the vote was very close, 5—4.

If a new case is heard by the Supreme Court it seems unclear what direction will be taken. The Bush administration seems to have little patience for what the rest of the world thinks, but that doesn't mean that any Justices appointed will have equal disregard.

The new Chief Justice John Roberts is going to outlast the current administration (and most likely the next five at least), but Chief Justices don't get everything their own way (just look at this decision), even if he is going to play things as the religious right would like.

The other new hire, Samuel Alito, is also interesting. Obviously again an appointment to appeal to the conservative right his very first decision was to vote against the Chief Justice and others in order to block Missouri from executing Michael Taylor (convicted of the rape and murder of a fifteen year old girl with an accomplice, also on death row in the same state).

The decision was made on the basis of execution being a cruel and unusual punishment. Maybe this points to the final death throes of capital punishment in the US and they will slowly be forced to join a host of other countries which have capital punishment on the statutes, but never use it.

Further reading and references