The U.S. Supreme Court added another short chapter this week to our continuing national adventure with capital punishment.
By a 5-4 vote, the justices ruled that the Constitution's ban on cruel and unusual punishment should prohibit the states from executing offenders who were younger than 18 at the time of their crimes. The rationale for this was the diminished capacity of young offenders. If we reserve death only for the worst of the worst, then those under 18 lack the maturity ever to be among those who should be considered the most blameworthy. The court's decision was a small step toward controlling the use of a penalty that sooner or later must be abolished.
This restriction on the death penalty might seem to be a modest and relatively easy step in the evolving constitutional standards on death. The court had already recognized immaturity as a constitutional criterion by forbidding the execution of either those younger than 16 at the time of their crimes or of the mentally retarded. And an exception for minors is not controversial even in nations with death penalties. Among the 80 or so mostly Asian and African nations that still keep a death penalty on their books, only three allow death sentences for those younger than 18. Did we really want to remain on a short list with Iran and Somalia?
But nothing is easy in the convoluted jurisprudence of American capital punishment. The justices had balked at extending the age boundary to 18 in 1989, and there was fierce resistance to an 18th birthday requirement from the court's conservatives. The debates this week show that looking to other nations for moral guidance is a particular bone of contention on death penalty questions because every fully developed nation except the United States and Japan has abolished the death penalty. With stakes that high, even the juvenile death penalty became a close call.
The battle about juvenile executions takes place against a background of mixed feelings about the death penalty and sharp regional differences in legal standards for its use. A majority of Americans support a death penalty for murder but a smaller majority also thinks the penalty is unfairly administered. In Northern industrial states where there is respect for due process and decent capital defense services are provided, good lawyers keep the number of executions very low and the delay to execution is decades.
In some Southern states, however, the combination of inadequate resources and unsympathetic courts generates more than 80 percent of the nation's executions. In the first 25 years after executions resumed in the United States, for every one execution that took place in the Northeastern states, there were 160 executions in the South. Sure enough, 90 percent of the persons sentenced to death for juvenile offenses also were from Southern states.
New York's experience has been typical of the Northeastern pattern. The death penalty statute that passed in 1995 provided good legal services for capital defendants, so dedicated defense lawyers and concerned appellate judges eventually ended the career of New York's 1995 statute with zero executions. With lower crime rates in 2005 and less money to throw at an extraordinarily expensive system, there seems no immediate prospect of a new version of Empire State death penalty legislation.
For states such as New York, New Jersey and Massachusetts, the real choice is between capital punishment lite, a system with huge litigation costs and few or no executions, and a criminal justice process that uses imprisonment as its ultimate weapon. There is no difference between these two systems in keeping the streets safe, but the symbolic attachment to executions still dies hard.
Around the world, the abolition of the death penalty is a two-step process. First, executions cease to be of any practical importance in crime control. Then, some decades later, the now unnecessary executioner gets his retirement papers.
We have long since passed the point where any death penalty was necessary. What we are now debating is whether and when we will abolish a penalty we all know we do not need. The ultimate result is a sure thing, but there may be some extraordinary fireworks on the path to the end of executions.
Franklin E. Zimring is professor of law at the University of California, Berkeley, and author of "The Contradictions of American Capital Punishment."
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