The Eighth Amendment states, in part, that laws that inflict "cruel and unusual punishments" are unconstitutional. With the current debate about torturing detainees ongoing, these issues of what constitutes cruel and unusual punishment(s) are still to be settled.
I discuss recent Supreme Court decisions, such as Roper v. Simmons (2002) and Atkins v. Virginia (2002), to answer the question of what the minimum age a convicted murderer must be to be subject to the death penalty. I also discuss whether a mentally incompetent convicted murderer can be legally executed.
The Eighth Amendment states, in part, that laws that inflict "cruel and unusual punishments" are unconstitutional. The full text is:
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
As is common in determining whether or not a law is unconstitutional, each word must be examined both separately and in context. Obviously, punishment (I'll use the singular form to replace the plural) is constitutional. If someone violates the law, they must be punished to discourage others. Is cruel punishment absolutely forbidden? Not quite: only cruel and unusual punishment - there is a two part standard.
With the current debate about torturing detainees ongoing, these issues of what constitutes cruel and unusual punishment are still to be settled.
I think the key word is unusual. This word is a recognition of what society thinks are accepted forms of cruel punishment. If the crime is sufficiently heinous, such as an especially cruel murder, or treason, in the opinion of society, then a hard (indeed, cruel) punishment such as execution is required.
Thus, the definition of unusual punishment depends on the community standards of where the punishment takes place. Some states, like my own state of Massachusetts, and communities within these states, think that any form of capital punishment is cruel and unusual, and so they forbid the death penalty. Others, like Texas, love it, even though the statistics show that having the death penalty doesn't deter murderers.
Other countries have different community standards. Let's take the case of Saudi Arabia, our ally in the Global War on Terror. In Saudi Arabia, amputation of limbs and beheading are a common form of punishment, for crimes like adultery and whatever they take to be a violation of Islamic law (the Sharia). Think of Sharia as the Constitution of Islam. It's a common recreational activity for hundreds of excited people to gather in the community square and watch a beheading. An eighth amendment in a Saudi Arabian constitution would presumably have to take this community standard into account. Since this community standard has been in effect for at least a thousand years, it would have the effect of precedent, and the hypothetical Saudi Arabian Supreme Court, using the doctrine of stare decisis, would likely uphold beheadings. The Saudi Arabian equivalent of Monday Night Football isn't likely to end any time soon.
In this episode, I will discuss another form of unusual punishment in this country - whether the execution of minors and mentally incomplete individuals is constitional according to the Eighth Amendment. You might think this question has been settled a long time ago, but actually the case I'm discussing, Roper v. Simmons, regarding whether a state could execute someone under 18 for murder, was decided only in 2005.
Here's a brief summary of the facts of the case, from the Wikipedia article:
This case, which originated in Missouri, involved Christopher Simmons, who in 1993 at the age of 17, concocted a plan to murder Shirley Crook, bringing two younger friends, Charles Benjamin and John Tessmer, into the plot. The plan was to commit burglary and murder by breaking and entering, tying up a victim, and tossing the victim off a bridge. The three met in the middle of the night; however, Tessmer then dropped out of the plot. Simmons and Benjamin broke into Mrs. Crook's home, bound her hands and covered her eyes. They drove her to a state park and threw her off a bridge.
The case against Simmons was overwhelming. He confessed to a premeditated, brutal, murder. No surprise confession or last minute DNA evidence exonerating Simmons here. He committed the crime in 1993. By 2005, when the Supreme Court ruled, there were 12 years of painstaking grinding through the legal system. From the facts of the crime, he deserved to die.
The only problem - Simmons was 17 when he committed the murder. His only defense against capital punishment was that he was a minor, incompetent to make the decision. As minors in every state, 17 year olds cannot vote. They cannot sign a contract, such as a marriage contract, independently. They cannot buy alcoholic beverages legally. That's because the government asserts an interest in protecting minor's health and welfare. At 17, Simmons was an adolescent. Any parent of an adolescent knows that they sometimes act in ways that endanger themselves and others, that they're not totally in control of their decisions. So how can the state execute Mr. Simmons?
The court was divided. In a 5-4 decision, on March 1, 2005, the Court ruled that execution of Simmons is unconstitutional. Justice Anthony Kennedy, who wrote the majority decision, cited sociological and scientific evidence that juveniles have a lack of maturity that prevents them from making totally mature decisions. The dissenting justices were Scalia, Thomas, Rehnquist, and O'Connor. Scalia's dissenting opinion took the originalist argument that executing minors might have been legal in 1791, at the time of the Bill of Rights. Of course, by that logic, slavery was legal as well, as weas the slave trade. Even though the 13th Amendment subsequently abolished slavery, and the slave trade was abolished in 1808, wouldn't the originalist argument make those facts irrelevant?
The decision had an immediate effect on a famous case - the gas station murders committed by Lee Malvo, a minor, and John Allen Muhammad, an adult, the Beltway snipers. They had murdered people at gas stations in Maryland, Virginia, Alabama, Florida, Texas, and Louisiana. Lee Malvo pulled the trigger in these murders and was under 18. The government, asking for the death penalty, sought to move his trial to Virginia, a state that allowed the death penalty for minors. The upshot of Roper v. Simmons was that Lee Malvo could not be executed.
There seems to be an emerging body of case law about the limits of the death penalty. At the time of the Simmons decision, a previous decision (Stanford v. Kentucky, 2002) prohibited the death penalty for a 15 year old murderer, but left the possibility open for 16 and 17 year olds to be executed - another 5-4 decision. In another case, Atkins v. Virginia (2002), the Court ruled, by a 6-3 decision, that executing a mentally retarded person is unconstitutional, but the Court left it up to the states to define mental retardation.
This week, that definition will be tested in California. This, from the San Jose Mercury News, February 19, 2007.
A prosecutor and a lawyer will square off in a Santa Clara County courtroom later this week to argue whether DeShawn Lee Campbell could read a menu, was confounded by the cash registers at Mervyn's and occasionally put his clothes on backward.
The question Judge Diane Northway will decide after the rare hearing will be this: Is Campbell mentally retarded?
If Northway decides the answer is "yes," then the 27-year-old cannot be sentenced to death if he is convicted of the 2001 shooting death of San Jose police officer Jeffrey Fontana. If she decides the answer is "no," Campbell could face the death penalty.
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