The U.S. Supreme Court ruled Tuesday that executing criminals who were under 18 when they committed their crimes is unconstitutionally cruel, effectively commuting 72 death sentences in 19 states, according to The Associated Press.
Justice Scalia wrote a passionate dissent to the 5-4 decision, saying, “I do not believe that the meaning of our Eighth Amendment, any more than the meaning of other provisions of our Constitution, should be determined by the subjective views of five Members of this Court and like-minded foreigners.”
To Scalia, the Constitution (and the Bible for that matter) is a dead document to be interpreted for all time exactly the same as it was when it was first adopted. For that reason, he has stated that the death penalty should be exercised for all felonies, including “horse thieving,” so that it jives with what was considered cruel and unusual at the time when the Eighth Amendment was first adopted.
This “textualist” — or should I say “fundamentalist” — approach might seem more objective to Scalia, but as far as I am concerned, it is every bit as subjective as the “contextualist” approach adopted by the majority in this case. Society’s definition of cruel punishment has shifted over the years, and the laws governing punishment need to keep up. I would much rather see America progress with the rest of the world than take one giant step back into the 18th Century.
Justice Scalia’s not-so-hidden agenda is to more perfectly align U.S. law with his interpretation of divine law. He has said, “The more Christian a country is, the less likely it is to regard the death penalty as immoral. I attribute that to the fact that for the believing Christian, death is no big deal.”
He should ask Justice Rehnquist and the families of victims of the Sept. 11 terrorist attacks whether they agree that “death is no big deal.” The fact is death is a big deal, especially when the state is the one responsible for the killing. Since the death penalty was reinstated in 1976, the United States has executed 22 juvenile offenders, with Texas accounting for more than half. Support for killing juvenile offenders has placed the United States at odds with international norms (seven international treaties prohibit it) and has earned the United States odd company, especially for a Christian practice; the countries known for executing juvenile offenders since 1990 are the Democratic Republic of Congo, Iran, Nigeria, Pakistan, China, Saudi Arabia and Yemen. Isn’t it funny that fundamentalist Christians and fundamentalist Muslims have more in common with each other than with secularists?
While the ruling means little for us in the Pacific Northwest (Oregon and Washington have already outlawed the practice of executing juvenile offenders), it does mean we are one step closer to an all-out abolition of capital punishment in this country. Unlike most of my fellow liberals, I do not believe that capital punishment is inherently cruel and, therefore, needs to be totally abolished. Do Saddam Hussein, Osama bin Laden and other homicidal maniacs deserve to get lethally injected? Absolutely. However, I do strongly believe we need an immediate and temporary moratorium on the use of the death penalty while we sort out a few significant wrinkles in our judicial system.
The most common arguments for a moratorium are that the death penalty is expensive, there is no evidence that it acts as a deterrent and, in recent years, DNA testing has proved what many activists have been saying for decades: Our courts routinely sentence innocent people to death row.
But the most compelling argument for renewing a moratorium on capital punishment is the overwhelming evidence of racism that permeates the institution. Since reinstated, 80 percent of those receiving a death penalty sentence have been executed for murders involving white victims, even though blacks and whites are murdered in nearly equal numbers (blacks are approximately 12 percent of the population but are six times more likely to be murdered than whites), according to an Amnesty
International report.
At least 20 percent of blacks receiving a death penalty sentence are convicted by all-white juries. Study after study show that white jurors place more value on the lives of white victims and white defendants than on the lives of black victims and black defendants, consciously or unconsciously, when it comes to decisions about capital punishment.
A temporary moratorium on the use of capital punishment is necessary until our justice system can find a method by which it can be administered without violating Article 7 of the Universal Declaration of Human Rights: “All are equal before the law and are entitled without any discrimination to equal protection of the law.” The continued use of capital punishment, despite clear evidence of discrimination, is a crime against humanity. Whether philosophically for or against the death penalty, everyone should be able to get behind this pragmatic compromise.

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