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Wednesday, March 02, 2005

Roper v. Simmons

Posted by: Hammer / 7:41 AM

Thanks to a tip from a The Man with the Lavender Gloves, we get this article from William Saletan, where Saletan argues that O'Connor is consistent on death penalty and parental notification cases: "...But let's go back to the 15-year-old abortion case Scalia cited. In Hodgson, the court upheld a Minnesota law that required notification of both parents before performing an abortion on a girl less than 18 years old. However, the court also required Minnesota to offer girls the option of explaining to a judge why they should be allowed to make the decision on their own. O'Connor insisted on the judicial bypass as a means of "tailoring" parental involvement laws "to avoid unduly burdening the minor's limited right to obtain an abortion." ... O'Connor's position, in other words, was that age was too rigid a criterion. And what's her position in the death-penalty context? The same. She opposes a "categorical prohibition" of death sentences for minors, since the evidence merely shows "differences in the aggregate between juveniles and adults, which frequently do not hold true when comparing individuals."

I based my comments on parental notification an article by Molly Ivins. I misread Ivins's article. Texas does allow a maturity exemption within the judicial bypass procedure for parental notification. Ivins wrote: "If a minor can go before a court and prove she either cannot or clearly should not notify her parents, a judge can grant her exemption from the requirement." Ivins goes on to provide a number of cannot and should not examples, none of which are related to maturity. Although maturity exists as an exemption now, Ivins suggests that the exemption is de facto unavailable in most Texas counties due to ignorance. Ivins further reports that the Texas legislature is considering a bill that would mandate parental consent rather than notice. Consent implies that maturity would not be an exception.

The Supreme Court yesterday, in Roper v. Simmons (background) ruled that states cannot execute people who commit crimes while minors. Justice O'Connor dissented:
Adolescents as a class are undoubtedly less mature, and therefore less culpable for their misconduct, than adults. But the Court has adduced no 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.


Surely there is an age below which no offender, no matter what his crime, can be deemed to have the cognitive or emotional maturity necessary to warrant the death penalty. But at least at the margins between adolescence and adulthood-- and especially for 17-year-olds such as respondent--the relevant differences between "adults" and "juveniles" appear to be a matter of degree, rather than of kind. It follows that a legislature may reasonably conclude that at least some 17-year-olds can act with sufficient moral culpability, and can be sufficiently deterred by the threat of execution, that capital punishment may be warranted in an appropriate case.


Chronological age is not an unfailing measure of psychological development, and common experience suggests that many 17-year-olds are more mature than the average young "adult."

It seems to me that if society deems all 17 year olds lacking the maturity to vote, smoke cigarettes, or drink alcohol, society must deem all 17 year olds lacking the maturity to so fully control and comprehend their actions as to be eligible for the death penalty. If you want to execute 17 year olds, you must make them full citizens first.

O'Connor's view is wholly unprincipled. She wants to make all 17 year olds executable and let juries sort them out. I trust juries to make important decisions when given accurate information. Unfortunately, death penalty juries are stacked via voir dire to include the most enthusiastic supporters of the needle. Then, juries are routinely given bad, false, or incomplete information upon which to base their decision:

Dr James P. Grigson, a Dallas forensic psychiatrist, testified that in his opinion the defendants were "absolutely" and "most certainly" a danger in the future. This "expert" opinion, usually based wholly on hypothetical questions posed by the prosecutor, was offered to urge the jury to impose death because the defendant would pose a future danger to others if given a life sentence.

Dr Grigson (often referred to as "Dr Death") has testified for the prosecution in at least 140 Texas capital trials; jurors imposed death sentences in more than 98 percent of these cases. Dr Grigson has repeatedly testified that his predictions are 100 percent accurate.

If O'Connor wants to be consistent, she must now support a maturity defense to statutory rape. After all, if the relevant differences between "adults" and "juveniles" are a matter of degree, then the differences between a "juvenile" and an "adolescent" are also a matter of degree. It follows that in a statutory rape case, the state must prove not only that the victim was below a certain chronological age, but also that the victim was below the emotional age to act responsibly.

Further, O'Connor must also support a maturity exception to parental notification when a minor seeks an abortion. Typically, a minor must demonstrate that a parent is unavailable or that it would be dangerous to notify a parent, before a court will allow an exception to parental notice of an abortion. Under the O'Connor rule, any 17 year old who acts adult enough should have an automatic pass -- or at least the right to have a jury decide whether she's adult enough to circumvent notification.

We need a bright line between children and adults for legal purposes. There will always be 17 year olds who are more mature than 20 year olds and 30 year olds who consistently act like children. The only other option is to return to a more communal society, where adulthood is conferred by ceremony and consensus.


This comment has been removed by a blog administrator.

By Anonymous Jambo, at 10:09 AM  

Jambo, you make me weep.

By Blogger Hammer, at 10:36 AM  

I'm sure I would if I had made the post above, but I did not. I hope the comment was made by someone known to one or the other of us who has just gone a little too far in an attempt at humor.

By Anonymous Jambo, the real one, at 12:53 PM  

Yet another victim of identity theft.

By Blogger Hammer, at 1:03 PM  

I deleted the faux-Jambo comment.

By Blogger Hammer, at 2:58 PM  

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