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Wednesday, December 6, 2023

Old enough to die?

Determining the age of acceptable execution is a gruesome task, but if there is to be a death penalty, some entity has to do it.

Determining the age of acceptable execution is a gruesome task, but if there is to be a death penalty, some entity has to do it.

In 1988, the Supreme Court banned the execution of anyone for crimes committed under the age of 16. In 1989, the court upheld the death penalty for 16- and 17-year-olds convicted of capital crimes.

This week the court reversed, 5-4, its 1989 decision. But the five justices in favor didn’t explicitly say the court was wrong 16 years ago, and that it should have said then that execution for crimes committed under age 18 is cruel and inhuman punishment and thus unconstitutional.

Instead, the justices came up with new and disturbing reasoning to arrive at their decision.

The court noted that the United States is almost alone in the world in executing juveniles and, in reaching their decision, the justices said, “It is proper that we acknowledge the overwhelming weight of international opinion …”

It is nice to be well-regarded in the world, but it is hard to see any connection between our standing in international opinion and matters of internal jurisprudence. The United States should be attentive to international law and foreign courts, but they should have no sway in how we interpret our own Constitution.

And, too, the justices found that raising the age of execution to 18 reflected an emerging “national consensus.” Acting on a national consensus would seem to be the job of the legislative and executive branches. And if there is a consensus, it’s far short of unanimous.

Twelve states have no death penalty; of the 38 that do, 18 prohibit execution for juvenile capital offenses, but 20 allow it. That’s somewhat short of a national consensus.

The five justices said they exempted juveniles from the death penalty because of their lack of maturity, undeveloped sense of responsibility, susceptibility to peer pressure and less than fully formed character.

Justice Anthony Kennedy, writing for the majority, said, “The age of 18 is the age where society for many purposes draws the line between childhood and adulthood.” But there’s nothing magical about 18. The “overwhelming weight of international opinion” might not find that acceptable, either. Will the justices shoot for 21?

(Contact Dale McFeatters at McFeattersD(at)