St. Luke is the authority for the story that as Jesus was dying he prayed for his accusers. "Father," he asked, "forgive them, for they know not what they do."
Justice John Paul Stevens made a similar plea a month ago in urging his colleagues to stay the execution of Toronto M. Patterson. Only Justices Ruth Bader Ginsburg and Stephen Breyer joined him, and Texas executed Patterson anyhow.
The underlying issue in this case will not go away. Patterson was only 17 years old when he murdered Kimberly Brewer and her two little children. Is it "cruel and unusual" to execute juveniles for such crimes? The court ducked that question last month when it turned down the Patterson case, but the issue is certain to return.
Just three months ago, in the case of Daryl Atkins, Stevens wrote for the court in banning the execution of defendants found to be mentally retarded. He said, "Because of their disabilities in areas of reasoning, judgment and control of their impulses, they do not act with the level of moral culpability that characterizes the most serious adult criminal conduct." The court was not saying, "Forgive them." It was saying only that they could not be put to death for their crimes.
Many of the same considerations — and the same arguments — that apply to the retarded apply also to juveniles. One key distinction, as a matter of law, is that a date of birth can be easily established. It is often difficult to establish a critical degree of mental retardation. In the Atkins case, an expert for the defense concluded that with an IQ of 59, Atkins was "mildly mentally retarded." An expert for the prosecution found that the accused had "average intelligence, at least."
In the Atkins case in June, Stevens noted that the term "cruel and unusual" has deep roots. The qualifying adjectives go back to a case in England in 1685. Our Founding Fathers repotted the phrase in the Eighth Amendment in 1791. "Much has changed since then," said Stevens, and indeed much has changed — but are the changes relevant to constitutional law?
In 1989, in what is known as the Penry case, the high court found no barrier to capital punishment for the feeble- minded. The decision sparked a response. Georgia promptly banned death sentences for the retarded. Maryland, Kentucky and Tennessee soon followed. Among the 38 states in which a death sentence may be imposed today, 18 now exempt retarded defendants. The American Psychological Association and other professional societies oppose the punishment. Christian, Jewish, Muslim and Buddhist bodies have filed amicus briefs in opposition. Within the "world community," said Stevens, disapproval is overwhelming. Polling data reflect the same consensus.
Chief Justice William Rehnquist and Justice Antonin Scalia scoffed at this evidence of an "evolving standard of decency." Rehnquist strongly objected to giving much weight to foreign laws, opinion polls, and the views of professional and religious organizations. Their relevance "finds little support in our precedents and is antithetical to considerations of federalism." What counts, said the chief justice, are legislatures. Eighteen states do not a consensus make.
Scalia's acidulous dissent in the Atkins case was to the same effect. He ridiculed the Stevens majority for its "contrived consensus." Their case was "embarrassingly feeble." Indeed, said Scalia, getting warmed up, "Seldom has an opinion of this court rested so obviously upon nothing but the personal views of its members."
Getting back to the case of Toronto Patterson: So far, there appears to be no movement among the states to ban the execution of juvenile offenders. Since 1989, apparently only Montana and Indiana have moved in that direction. Many of the same professional and religious organizations that opposed capital punishment for retarded people filed briefs in Patterson's behalf. From these it appears that only the United States, Pakistan and Iran have actually executed juveniles in recent years. A Gallup Poll last May found 69 percent of Americans opposed to capital punishment for those under 18. Is a new standard of decency evolving?
On this issue I would stand, uncomfortably, with Rehnquist and Scalia. The thought of executing boys is not a happy thought. But the fixing of punishment for crime is singularly the province of state legislatures, and until five justices say the Eighth Amendment forbids such punishments, the states have a right to decide for themselves. Meanwhile, a convincing case against the execution of murderous 17-year-olds hasn't been made. Not yet.
E-mail Jack Kilpatrick at kilpatjj@aol.com.