IF WE DON'T KILL THEM WE MIGHT NOT LET THEM KILL? (via Robert Schwartz):

Price of Progress (Dana Mulhauser, 03.02.05, New Republic)

Taken in conjunction with the Court's 2003 decision banning execution of the mentally retarded, yesterday's ruling in Roper v. Simmons suggests an evolving recognition among justices of systemic problems with the death penalty; and insofar as Roper represents another step on the long road to death-penalty abolition, the Court should be cheered along. But despite the overwhelmingly positive outcome of yesterday's decision, it also contains one hidden peril: Anthony Kennedy's majority opinion could well provide a legal opening to those who want to restrict the rights of minors--particularly in the realm of abortion.

In his decision, Kennedy argued that juveniles have limited mental capacity. Or, as he put it, a "lack of maturity and an underdeveloped sense of responsibility are found in youth more often than in adults and are more understandable among the young"; juveniles "are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure"; and "the character of a juvenile is not as well formed as that of an adult."

There was in fact no need for Kennedy to rely on such moral and psychological justifications. The "evolving standards of decency" test requires only looking at what the states themselves are doing. Thirty of them bar minors from being executed, and another group allows juvenile executions in theory but never actually carries them out. Determining evolving standards of decency can also, depending on which justice you're talking to, mean taking account of international consensus--and until yesterday, the United States was one of only six countries to permit juvenile executions. (The others are Iran, Nigeria, Pakistan, Saudi Arabia, and Yemen. Not exactly inspiring company.) But, as Antonin Scalia pointed out in his dissent, the Court is not required to examine or explain its own standards of decency. And in this case, doing so might have caused more harm than good.

The litigation strategy that promoted the idea of youth vulnerability was the subject of controversy within the juvenile-advocacy community. Juvenile-rights activists usually push for more reliance on juvenile autonomy--in custody battles, in the ability to obtain contraception, and in abortion decisions. Nevertheless, in its amicus brief, the Coalition for Juvenile Justice argued that "juveniles, like the mentally retarded, have developmental deficiencies." During a panel on Roper at a conference two weeks ago, Stephen Harper, head of The Juvenile Death Penalty Initiative, admitted that such tactics not only made him uncomfortable, but were in opposition to the premises he has spent twenty years defending.

Such divisions made the process of putting the case together tricky. During the same panel, Marsha Levick, the legal director of the Juvenile Law Center, noted that the process of lining up amici for the case had been fraught. The ACLU, although willing to sign a brief about the racial inequalities perpetuated by the juvenile death penalty, was not willing to sign a brief about the diminished rational capacity of juveniles. The organization's worry, according to Levick, who coordinated the amicus briefs for Roper, was that such a ruling might have adverse effects on reproductive rights, specifically the right of juveniles to obtain abortions.

Hard to see it as more decent to put them in prison to be raped, abused, etc., for several decades, until they die of AIDs or a knifing or whatever, but it does make liberals feel better because the torture is less direct than execution by the state. It's especially demented though that their tender concern for the lives of the guilty can overwhelm so much as recognition of the lives of the innocent unborn.

Posted by Orrin Judd at March 2, 2005 11:57 PM