Without realizing it as I wrote the earlier break down of Kennedy’s majority opinion for Roper v. Simmons, I seem to have made many of the same points Justice O’Connor made in her dissent.

She calls into question the assertion in the majority opinion that there is a substantive “consistency of direction” that would warrant changing the law. Justice O’Connor disputes whether there truly has been a great movement by the public against all minor executions, and states there can be little comparison between the movement in the last 15 years and the movement that was evident at the time Thompson v. Oklahoma was decided. She does grant that national mood and state law is a good indicator of “contemporary values” and should be given “great weight”, she places more emphasis on the independent moral judgments of the court itself, taking us to the main issues this case deals with: the capacity and competency of youth.

O’Connor doesn’t make any sweeping endorsements of the rationality and responsibility of young people, saying “It is beyond cavil that juveniles as a class are generally less mature, less responsible, and less fully formed than adults, and that these differences hear on juveniles’ comparative moral culpability.” However instead of accepting that generality as sufficient justification for overturning the juvenile death penalty, she provides a tempered though surprisingly spot-on youth rights rebuttal.

Justice O’Connor states that the Court was wrong to apply a general assumption about youth as a class to all youth within that class. Such an action ignores the significant number of outliers who can very well demonstrate adult levels of reasoning and understanding. Specifically she points to the facts of the case before them, of Christopher Simmons, 17, who disturbingly murdered a woman after much pre-meditation, planning, and prior discussion, “Simmons’ prediction that he could murder with impunity because he had not yet turned 18– though inaccurate–suggests that he did take into account he perceived risk of punishment in deciding whether to commit the crime.” I don’t see how any rational person could look at the details of this case and conclude anything different. Certainly Simmons weighed the punishment.

If this is the chief point in dispute regarding the rationality of youth, we should quite clearly declare most youth, even those of far younger ages than Christopher Simmons, as rational. A simple pro vs. con analysis is intuitive and I recall it being applied by me and my friends as far back as my memory goes, to 7 or 8. The factors we considered in that analysis were no doubt limited because of our limited experience. For example a friend refused to call a 1-800 number for fear he would get in trouble with his parents and ramp up massive charges on the bill. He was wrong to confuse 1-800 with 1-900, but that doesn’t affect the fact he made a rational analysis and weighed the pros vs. cons of the situation. I believe we were 7 or 8 at the time.

I contend that cases like this are not merely outliers, as Justice O’Connor implies, but far and away the majority of youth interactions. However I will save that discussion for another day. No matter what proportion of rational youth to irrational youth you decide is accurate, it is important to recognize that both exist. The Court made the faulty assumption that 100% of individuals 17 and under are irrational (or should be treated that way) and 100% of individuals 18 and over are rational (or should be treated that way). This, as O’Connor notes is an illogically inflexible standard to apply, and judges solely on the aggregate, and ignores individual cases:

Although it may be that many 17-year-old murderers lack sufficient maturity to deserve the death penalty, some juvenile murderers may be quite mature. 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.” In short, the class of offenders exempted from capital punishment by today’s decision is too broad and too diverse to warrant a categorical prohibition. Indeed, the age-based line drawn by the Court is indefensibly arbitrary–it quite likely will protect a number of offenders who are mature enough to deserve the death penalty and may well leave vulnerable many who are not.

Justice O’Connor then attacks any comparisons between young people and the mentally retarded (you go girl!). She states that the mentally retarded are by definition lacking in a sufficient level of cognition and development. Conversely,

“There is no such inherent or accurate fit between an offender’s chronological age and the personal limitations which the Court believes make capital punishment excessive for 17-year-old murderers. Moreover, it defies common sense to suggest that 17-year-olds as a class are somehow equivalent to mentally retarded persons with regard to culpability or susceptibility to deterrence.”

O’Connor then states that a closely tailored solution existed in the form of the criminal courts who weighed the factors of each case on an individual basis, and judged the maturity and competence of each offender on an individual basis. No evidence was brought by the other side stating that this process was inadequate or faulty. “I would not be so quick to conclude that the constitutional safeguards, the sentencing juries, and the trial judges upon which we place so much reliance in all capital cases are inadequate in this narrow context.”

She then goes on to forge a middle ground between Justice Kennedy and Justice Scalia on the merit and applicability of international practice in interpreting the 8th Amendment. It does have some degree of bearing, but should never be a determining factor. In so far as it does, it is only because of the nature of the 8th Amendment and the evolving standards of decency in civilized society that inform an interpretation of a 200 year old Amendment.

Overall I am very pleased with Justice O’Connor’s dissent, though sadly none of the other Justices joined her in it. O’Connor has gained a reputation as the most powerful Supreme Court Justice, and has often been the deciding factor in many important 5-4 decisions. Where Sandra goes, so goes the Court. However it is not the case with Roper v. Simmons. Not only was she not part of the majority in this 5-4 decision, but her dissent was not even joined by the other 3 dissenters. I have yet to read Justice Scalia’s dissent, but I doubt I will find close to as much commonality and agreement with Justice O’Connor’s. Much of her dissent was spot-on. Regardless of how one views the outcome, this case was terribly decided, was based on very shaky legal evidence and committed many leaps of judgment that Justice O’Connor rightly called out.

This entry was posted on Thursday, March 3rd, 2005 at 3:13 pm and is filed under Youth Rights. You can follow any responses to this entry through the RSS 2.0 feed. You can skip to the end and leave a response. Pinging is currently not allowed.