A lot of conservatives seem to be upset by the Supreme Court’s ruling that minors cannot be executed, and so it has me wondering about something. Most conservatives agree with Robert Locke’s diseased rant about libertarians when he makes this…

The point here is that the SCOTUS has placed this entire decision beyond the reach of the voters of the U.S.

The voters of the U.S. need not consider this issue any more. It doesn’t matter how many voters support the death penalty or how many disapprove of it. It doesn’t matter what their opinions are. They have no say at all here.

Of course, it’s not entirely an either or. Of the 38 death penalty states, 19 had a minimum age of 18 prior to yesterday’s decision. That’s not a policy I necessarily agree with, but as long as it was the legislature’s decision (it wasn’t always, but that’s another issue) I do respect it as the Legislature’s prerogative. The other 19 only rarely executed juveniles in practice, presumably because most juvelines probably didn’t have the requisite state of mind to warrant it but a few did. Michael Simmons was definitely one of them, as was Lee Boyd Malvo.

I guess that to convince me that a flat-out ban on juvenile executions is a good thing (assuming it’s done by the legislature and not our hyperactive courts), what you’d need to do is either convince me that the death penalty is wrong in and of itself, or produce at least one example of a real live juvenile who was unjustly sentenced to death over the past few decades. By “unjustly,” I mean unjust on account fo his age, and not on account of some other factors which would be equally unjust in the case of an adult (e.g., the nature of the murder, insanity, doubts about factual guilt, etc.).

Today we are no longer a rogue regime, a pariah state, when it comes to killing kids.

-k

Actually, in that case, the language analogy is still relevant: under those conditions, you would be asking judges, who generally don’t have training or expertise in linguistics, to evaluate the ability one person to understand another’s language. In a capital murder case involving a 17-year-old (or whatever age below the generally-accepted “adult” transition point) perpetrator, you’re asking a judge to evaluate an individual’s maturity level without having had training in psychology or neurology. If we came up with some reliable way (as reliable as, say, DNA testing) to determine that a person’s neurological age was above the limit, while his physical age was not, then I would view it differently. But in that case, I would not agree with the idea of sentencing a “non-adult” as an “adult” because of the nature of the crime; I would say that because the individual can be classified as neurologically adult, then of course his actions should be evaluated on that basis.

So to summarize: if an individual can reasonably be considered an adult, despite not having attained the age of majority, then I think sentencing that individual as an adult should be considered moral. However, I know of no truly reliable way to do so; it basically, as far as I know, comes down to the input of various experts, the judge’s receptiveness to their input, and possibly whether the judge got laid the previous night, or maybe whether he was suffering from mild stomach cramps during the competency hearing. Obviously that’s an exaggeration, but I think you understand my point: judging of maturity is a highly subjective undertaking, and both the judge and the experts bring their own personal biases to the court (I know, I know, that’s always true, but when the death penalty is involved, I’d rather err on the side of caution).

That last comment of yours was a good point, though. I had never thought about this from the perspective of judicial resource allocation, but I think it’s a useful way of considering this question. Anyway, I can definitely say that whatever anyone says about lawyers, you guys definitely don’t have an easy job.

Think of it this way. The world’s most mature 17 year old is not allowed to smoke, and the world’s most mature 20 year old is not allowed to drink, while an extremely immature 21 year old is allowed to engage in both activities all he wants. Why? Because society doesn’t have, or at least does not want to expend, the resources it would take to establish alcohol and tobacco courts competent to decide each potential purchaser’s level of maturity on a case-by-case basis. We do, however, have the resources to make such important determinations in criminal cases that affect only a small fraction of the population. So why not use them?

Well, I was in fact thinking of it only in the context of the death penalty, but you’re right, that’s too narrow for legal or even moral purposes. If you were to put me on the spot and say “should a juvenile ever be tried as an adult?” and I had to come up with an immediate answer, then it would be no, based on the reasoning I outlined above. Not because I believe that I as an individual can determine some specific age below which one is a juvenile and above which one is an adult, but because I believe that treating a person considered by society to be “a juvenile” in the abstract as though he were “an adult” in the abstract is a can of worms, a slippery slope, a Pandora’s box, choose your analogy.

The point at which this transition occurs is irrelevant for the purposes of this discussion (though not irrelevant in the broad sense of jurisprudence or morality, of course). What I’m talking about could even be further simplified to two basic human conditions or states of “adult” and “not-adult”. “Adult” carries the connotation of an individual who is fully capable of making independent decisions about his own actions and the consequences thereof. Therefore, “not-adult” carries the connotation of an individual without that capability, or at least an individual whose decision-making / consequence-judging capability is not sufficiently developed to make him a completely independent individual.

So, if we regard the actions of a “not-adult” as though they were the actions of an “adult,” then I believe we are behaving irrationally – in the abstract – and immorally. I realize this is a vast oversimplification, because it’s really not a matter of a binary “adult” / “non-adult” state-pair; it’s a continuum from childhood to adulthood. Yet, we know that at different points along the scale, individuals are not capable of making rational decisions about personal behavior choices. The best analogy for this model that I can come up with is one from my own primary area of interest: languages, and more specifically, differentiating between a dialect and a separate language.

The relevant dichotomy in this case is between mutual comprehensibility and mutual incomprehensibility. German and Dutch, though related, are considered separate languages. Each, however, contains a number of dialects whose phonology makes them either more or less comprehensible to speakers of the “other language.” So, in some border regions, there are “dialects” of German and Dutch which are mutually comprehensible, but which are mutually incomprehensible with the mainstream version of the other language. So, northern German may be understandable to speakers of southern Dutch, but not to people in Amsterdam.

The point of all this is just to explain how I see the “adult/juvenile” divide: it’s hard to define, no question about it, but it does exist somewhere, and we should not be pretending for legal purposes that juveniles are the same as adults. Just like we would not pretend for legal purposes that two separate languages are mutually comprehensible because there are dialects within each language with greater degrees of mutual comprehensibility. If I can’t understand you and you can’t understand me, then all the jurisprudence in the world won’t make us able to have a conversation. Now, if you want to argue about where the transition from incomprehensibility (i.e. “non-adulthood”) to comprehensibility (i.e. “adulthood”) occurs, then that’s an entirely different story. But to say that, in a broad sense, “a non-adult” should be treated as “an adult” in judging his capacity to make decisions is, in my view, approximately equivalent to saying that “a non-English speaker” should be treated as “an English speaker” in judging his capacity to proofread an English paper.

In its decision yesterday declaring the juvenile death penalty unconstitutional, Roper v. Simmons, the Supreme Court relied heavily on the fact that since

People under the legal age of 18 should be executed for their crimes. A lot of people think that kids under 18 should not face the death penalty. I beg to differ. People get the death penalty for premeditated murder….

As to the magic number argument, I’m not sure I understand where you are going with it. Does it apply only to the death penalty, or to criminal liability generally? Do you object to juveniles ever being tried as adults? If so, you’re arguing in effect that Simmons should walk. If not, why should the rule for the death penalty be any different?

Either way, an interesting discussion.