Friday, October 15, 2004

Sweet Sixteen, Indeed...

Nick here, infuriated again at what I see going on in the courts:

The Supreme Court has recently decided to take on a case involving the question of whether executing 16- or 17-year-olds is "cruel and unusual punishment" under the 8th amendment.

Via the Volokh Conspiracy's Orin Kerr, I found a link to a short amicus brief written by the Solicitor Gen of Alabama, listing a number of heinous crimes that bad 16- and 17-year-olds have committed, indicating their ability to act heinously, in a pre-meditaded, and, indeed, revolting fashion.

It's an interesting argument, but ultimately, it's geared more toward emotion than fact, and thus I find it utterly unconvincing.

We don't endow under-18s with many rights, including the right to vote, have sex with someone more than three years their elder (depends on the state), etc., because the law just doesn't hold them capable to. The law says, you're not yet able to make decisions for yourself, and therefore can't make decisions for the polity, and we're not going to hold you as responsible for what you do to other people, because you won't understand the consequences.

Now, if I wanted to, I could come up with a list of 16 year olds who had a better grasp of the issues in an election than most adults. As a precocious youth, I probably had such an understanding at age 16 (and so, probably, did Eugene Volokh). But that's not the point. No listing of intelligent 16 year olds should change the voting age.

There must be a consistent age at which one gains both the rights and responsibilties of acting as a full-fledged citizen. The rights are: voting, freedom from one's parents, self-determination, etc. The responsibilities are: being held accountable for one's own actions.

Should the supreme court buy the arguments of the Alabama Solicitor General, it would be saddling the 16-year-olds with all of the responsibilities, but none of the rights, of adulthood. It's grossly unfair, and it's not in keeping with my view of America.

UPDATE: Orin Kerr wrote in response:


But aren't you overlooking something important? The issue in the Supreme Court case is not whether a state can execute someone for crimes committed when they were minors, but whether the Constitution should be read (for the first time) to block states from deciding this on their own.

To which I reply:

That may be true. However, Newsom doesn't address the federalism/"lower court" (question presented #1) issue in his amicus, so I'm not really taking that on, and am probably not qualified to:

"The States' purpose in filing this brief is a limited one. It is simply to show--using the facts of real-world cases--that there is no principled basis for concluding that 16- and 17-year-old murderers, as a class, are categorically incapable of acting with a degree of moral culpability deserving of society's severest punishment."

And it would seem to me an amendment of the constitution saying, "under-18s can't vote," would seem to classify as such a "categorical incapab[ility] of acting with a degree of moral culpability."

UPDATE #2: Prof. Kerr still thinks I've missed the point:

The issue isn't a matter of federalism or lower courts; the issue is whether the courts must intervene and enact a categorical bar denying legislatures the power to *ever* execute someone for committing a murder at the age of 16 or 17.

I respectfully dissent as to that statement's applicability, but Mr. Kerr's a busier and more important man than I.


Suppiluliumas said...

First of all, I think that the basic idea behind what you're saying, is valid: Rights and Responsibilities need to be balanced. You cannot hold someone responsible for something they have no control of - this is stupid - and you cannot give someone power without accountability - this breeds monstrous abuses. Rights and Responsibilities must be balanced.

That said, however, moral culpability is not a monolithic structure. Humans are not amorphous, immoral beings until a magic bell goes off at midnight of their 18th birthday, and they suddenly acquire a moral sense. It is something we acquire over time. You cannot expect a 6 year old to have developed a robust religious consciousness, but you can reasonably assume that a 16-year-old will have grasped that it's not acceptable to defecate in public.

Gradations of responsibility and accountability are even enshrined in law. 6 year olds cannot drive legally; 16 years old can (in most locales); neither are of the age of minority.

Voting (in theory - I won't mention the truth) should require careful, rational consideration of the issues, political philosophies, and the candidates platforms. Sex is an issue that can - and often does - have lifelong results (again, the truth is often quite different) and thus, in theory, should also take informed, rational consent. But we're not talking about something that takes complex moral deliberation. We're talking about realizing that society has determined that sticking a 9mm against someone's head and pulling the trigger has consequences.

Is this a difficult concept to grasp? I don't think so.

Whether or not you agree with the death penalty, or not, it's use really has only two justifications (if you believe it has any). First, to act as a deterrent to future criminals, and secondly, to remove an individual from the population that exhibits dangerous and threatening behavior toward other citizens. Some might think of it as revenge, but I do not think this is a defensible attitude. Both are applicable to 16 and 17 year old criminals.

If, however, you postulate that minor-aged criminals are not morally culpable - and I despite what I have said, I believe this is a defensible position (just not one I agree with) - where does the blame lie? Should we advocate the execution of their parents?

Dylan said...

Differing standards are appropriate because of the relative costs involved in applying them. We can (maybe) say that 16 years olds in general are neither mature enough to vote or know the wrong they do when they commit murder sufficiently to be murdered.

But in the former case we can't afford to evaluate each under 16 person to see if this particular one is mature enough to vote. In the latter, however, we must let a dozen people take a look at it, so there's no need for a general rule - the jury can and will evaluate the individual circumstances.

And really, if a sixteen is so immature that he doesn't know the immorality of his action sufficiently to be executed, why the hell should we punish him at all? If he really didn't know, just lock him for a few years. If he did know, what justification is there for a line drawn between life imprisonment and execution?