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Politics : Politics for Pros- moderated -- Ignore unavailable to you. Want to Upgrade?

To: Lane3 who wrote (102980)	3/2/2005 10:01:41 AM
From: Lane3	Respond to of 793963

washingtonpost.com > Opinion > Editorials Editorial Remedy in Need of Candor Wednesday, March 2, 2005; Page A16 FOR OPPONENTS OF the death penalty, the Supreme Court's decision yesterday striking down the horrid practice of executing people for crimes committed before they came of age represents a watershed. After years of making capital punishment ever easier for states to carry out, the court is drawing important lines. Children cannot drink, cannot vote, cannot serve their country in war -- all because society has made the judgment that, as a class, they lack sufficient maturity to make certain judgments wisely and must be protected. Allowing juveniles to be sentenced to death is a total abandonment of that responsibility. Yet in 1989, the Supreme Court declared that executing people for crimes committed at ages 16 and 17 does not offend the Eighth Amendment's bar on "cruel and unusual punishments." The court was wrong then, and its decision yesterday to correct its mistake removes a barbaric excess of the system of capital punishment. Unfortunately, the court could not bring itself to acknowledge that it was correcting a mistake. Justice Anthony M. Kennedy, who wrote the opinion for the court, didn't hold that the earlier majority, of which he was part, had erred or that (reasonably enough) he had rethought his view with the benefit of the years and come to a different conclusion. Instead, he contended that circumstances have changed so much that what was constitutional in 1989 is now beyond the pale. Like the court's decision in 2002 banning the execution of the mentally retarded, this failure of candor greatly undermines the power of the court's action -- exposing it to ridicule in a sometimes devastating dissent by Justice Antonin Scalia. The Eighth Amendment's prohibition necessarily calls for some subjectivity. The definition of cruelty is not a matter of universal agreement, nor is it obvious how unusual a cruel practice has to become before it crosses into the realm of the unconstitutional. Whatever the answers to these questions, killing people for crimes they committed as children is certainly no crueler today than it was nearly 16 years ago, and, as Justice Scalia points out, it's not all that much more unusual either. Some states have banned it in the intervening years, but in the modern era, it has always been rare -- and has long since made the U.S. criminal justice system unique among civilized countries. Pretending that the reality is radically different today than in 1989 allows the court to avoid confessing error, but it requires both factual stretches and the adoption of an ever-more impressionistic and unstable approach to what the Eighth Amendment bans. As Justice Scalia perceptively asked, "What kind of Equal Justice under Law is it that -- without so much as a 'Sorry about that' -- gives as the basis for sparing one person from execution arguments explicitly rejected in refusing to spare another?" Getting rid of the juvenile death penalty is long overdue. But if federal judicial actions reining in capital punishment are to have lasting credibility, the justices must develop more principled bases for their decisions than the majority mustered here.