Still Cruel and Unusual

Washington Post

February 3, 2004

Editorial

AT FIRST GLANCE, the Supreme Court’s decision to reconsider whether the juvenile death penalty violates the Constitution may seem to be good news for opponents of capital punishment. In 1989 the high court, in the case of Stanford v. Kentucky, upheld the practice of executing people for crimes they committed when they were 16 or 17. Now the justices want another look, just as they recently took another look at — and banned — execution of the mentally retarded, which they had also upheld in 1989. Some state legislatures have moved to outlaw the juvenile death penalty since the court last considered the issue, arguably a sign of the same sort of consensus that led the justices to declare killing of the retarded to be “cruel and unusual punishment.” Perhaps, some hope, the court is poised to take the next step: a clear statement that killing people for crimes they committed as juveniles is also off-limits.

Unfortunately, this may not be the court’s intention. The justices have passed up the chance to consider the juvenile death penalty in recent years, over the objections of the four more liberal members of the court, and thereby let juvenile offenders go to their deaths. The court accepted the latest case only after the Missouri Supreme Court ruled that the Constitution forbids the juvenile death penalty, notwithstanding the high court’s precedent. The U.S. Supreme Court, in other words, may have agreed to hear the case not because justices have changed their minds but to slap down a state court.

The Missouri court reasoned that the Supreme Court itself considers the Eighth Amendment’s prohibition of cruel and unusual punishment not as a simple ban on particularly vile punitive practices but rather as a kind of sliding scale: Whatever society’s “evolving standards of decency” come to abhor, the Eighth Amendment forbids. Times have changed since 1989, the state court reasoned, so it was free to determine that since Stanford, “a national consensus had developed against the execution of juvenile offenders.” Given that lower courts are supposed to apply Supreme Court precedents faithfully, this approach is difficult to defend. It would not be surprising if the high court repudiated the Missouri court’s action and, in so doing, reiterated its own prior position.

But it would a great shame, because if the Missouri court misunderstands its obligation to the federal Supreme Court, it is right on the merits of the matter. Indeed, the juvenile death penalty was cruel and unusual punishment in 1989, a barbaric mistreatment of children, and it is still cruel and unusual today. The court should not, in disciplining a lower court, compound its own prior error.

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