I'm no legal scholar, but there are certain things that I don't understand about the some right-wing critiques of the so-called "evolving standard of decency." The critiques have reared their head again in the wake of the Supreme Court decision outlawing execution of juveniles. Just two things for now, both said by Jeff Jacoby:
The United States has not reached anything like a settled view on this subject, but that no longer matters. Five justices have declared that the Eighth Amendment's ban on ''cruel and unusual punishment" forbids the execution of murderers who were juveniles when they killed. And that, under our system, is that.
A good thing? Not when it comes to an issue on which public opinion is as fluid as capital punishment. The Roper majority purported to ground its ruling in the nation's ''evolving standards of decency," which it says have led to a ''national consensus" against the execution of juvenile murderers. Even if there were such a consensus -- and there clearly is not -- there is no reason to believe that it is chiseled in granite.
My question, I suppose, involves this: when deciding whether or not someone is old enough to be executed, I'm not particularly inclined to take opinions by people who don't know anything about the subject very seriously, including my own. I don't know anything about psychology. I don't know about the clinical differences between 16 year olds and 18 year olds. Most people don't, and so it's hard to trust that the idea that an informed decision about whether 16 year olds, say, are culpable enough to be executed for a crime can be made by a large population. I don't mean to be un-democratic, but when talking about an evolving standard of decency, surely the fact that not all state legislatures have outlawed something shouldn't be the end of the discussion.
It is hard not to conclude that five justices ruled capital punishment of juvenile murderers unconstitutional simply because they personally oppose it. Their arguments are the familiar ones: Juveniles tend to be more immature and irresponsible than adults, they are more susceptible to bad influences, their character is less well formed. All obviously true -- as a rule.
But just as obviously true is that there are exceptions to the rule. The average 17-year-old criminal may be less culpable than the average adult criminal, but who would deny that some 17-year-olds can act with depravity and ruthlessness far beyond their years?
Well, sure, but this is really not a legal argument. Some 17-year-olds are smarter than others. Some 18-year-olds know things, and some don't, but we still let them all vote. It seems to me that a standard that allows one judge or one jury (it is only a jury that can hand down a death sentence these days?) to arbitrarily decide that this 16-year-old is more precociously evil than this one is much more unclear than a general "evolving standard of decency."