The Public Thumb
By a 5-4 vote, the US Supreme Court has just moved the national pendulum on the issue of whether to execute juvenile criminals all the way over to the no side. Technically the majority decided such executions now constitute cruel and unusual punishment which is banned by the 8th Amendment, basically because juveniles are not mature enough to be held responsible at the price of their life. Predictably, Scalia, Rehnquist and Thomas were in favor of letting juveniles hang if that is what a State jury wants to do, but Sandra O’Connor also dissented and wrote her own dissenting opinion, not joining in the other dissent.
Using my "line drawing" approach here, I would say there are two lines under discussion. One is where the line should be drawn on capital punishment. People like me say capital punishment should never be allowed, but other people struggle on a case by case basis with trying to decide who should live and who should die. Like the Roman Emperor, juries are asked to give thumbs up or thumbs down, which should be a hard decision for people to make, but not for people like me because opponents of capital punishment are not allowed to serve on a jury in a capital case. Imagine what it would be like for a capital punishment foe on trial for a capital offense, knowing that the supposed jury of your peers actually does not include any of the many people like me who are opposed to capital punishment.
The other line the Court was involved in drawing was a time line. When has the societal thumb changed enough for the Court to change a prior opinion. In the present case, the Court had to work around or overturn a prior decision from 1989, evaluating the attitude of the public thumb and how it has changed since then. As Justice Stevens pointed out in a one page concurring opinion joined in by Justice Ginsburg, that the public thumb does change over time is not open to question, otherwise 7 year olds could still be executed as they could legally be at the time the 8th Amendment was adopted, but the pace at which the public thumb changes will always be open to debate.
Using my "line drawing" approach here, I would say there are two lines under discussion. One is where the line should be drawn on capital punishment. People like me say capital punishment should never be allowed, but other people struggle on a case by case basis with trying to decide who should live and who should die. Like the Roman Emperor, juries are asked to give thumbs up or thumbs down, which should be a hard decision for people to make, but not for people like me because opponents of capital punishment are not allowed to serve on a jury in a capital case. Imagine what it would be like for a capital punishment foe on trial for a capital offense, knowing that the supposed jury of your peers actually does not include any of the many people like me who are opposed to capital punishment.
The other line the Court was involved in drawing was a time line. When has the societal thumb changed enough for the Court to change a prior opinion. In the present case, the Court had to work around or overturn a prior decision from 1989, evaluating the attitude of the public thumb and how it has changed since then. As Justice Stevens pointed out in a one page concurring opinion joined in by Justice Ginsburg, that the public thumb does change over time is not open to question, otherwise 7 year olds could still be executed as they could legally be at the time the 8th Amendment was adopted, but the pace at which the public thumb changes will always be open to debate.
posted by Tom Blake | 5:31 PM
0 Comments:
Post a Comment
<< Home