Tuesday, October 26, 2004

The Supreme Court ponders its effect on foreigners and gangs

From the transcript in the Roper case:

JUSTICE KENNEDY: Do we -- do we ever take the position that what we do here should influence what people think elsewhere?

MR. LAYTON: I -- I have not seen that overtly in any of the Court's opinions, Your Honor.

JUSTICE SCALIA: You -- you think --

JUSTICE KENNEDY: You -- you thought that Mr. Jefferson thought that what we did here had no bearing on the rest of the world?

MR. LAYTON: Oh, I -- I think Mr. Jefferson thought that. I think many of the Founders thought that they were leading the world, and I have no objection to us leading the world, but Mr. Jefferson's lead of the world was through the legislature not through the courts.

JUSTICE GINSBURG: But did he not also say that to -- to lead the world, we would have to show a decent respect for the opinions of mankind?

MR. LAYTON: That -- that may well be.

JUSTICE SCALIA: What did John Adams think of the French?


MR. LAYTON: I read a biography of John Adams recently. I recall that he didn't think highly of them.


. . .

Later, Judge Kennedy made this interesting point:

JUSTICE KENNEDY: I have -- I have one other question I'd like to ask because it's been troubling me and I want your comment. A number of juveniles run in gangs and a number of the gang members are over 18. If we ruled in your favor and this decision was given wide publicity, wouldn't that make 16-, 17-year-olds subject to being persuaded to be the hit men for the gangs?

MR. WAXMAN: Well -­

JUSTICE KENNEDY: I'm -- I'm very concerned about that.

MR. WAXMAN: I -- I am also concerned about it, and I -- I have thought about this. First of all, if they 18 are enlisted by people over the age of 18 to do that, the -- the precise degree of culpability goes to the people who are over 18, and juries ought to consider whether people who are over the age of 18 have so enlisted them. But even -- but with respect to -
JUSTICE KENNEDY: I'm talking about the deterrent value of the existing rule insofar as the 16 and 17-year-old. If -- if we rule against you, then the deterrent remains.

MR. WAXMAN: Well, I think -- I think, as with the mentally retarded, or in fact, even more than with the mentally retarded, adolescents -- the -- the role of deterrence has even less to say, precisely because they weigh risks differently and they don't see the future and they are impulsive and they're subject to peer pressure. And in fact, if you look at what happened in this case, it's as good an example as any. The State says, well, okay, you know, he -- you know, this guy, according to the State's witness, the person, who was over 18 and described as the Fagin of this group of juveniles, testified to the court, well, Christopher Simmons says, let's do it because, quote, we can get away with it.

JUSTICE KENNEDY: Well, there were a number -- a number of cases in the Alabama amicus brief, which is chilling reading -- and I wish that all the people that sign on to the amicus briefs had at least read that before they sign on to them -- indicates that often the 17-year-old is the ringleader.

MR. WAXMAN: Well, the 17-year-old may be the ringleader, and even if you posit that Christopher Simmons was the ringleader here, he -- he wasn't under any illusions. He wasn't making a statement about being executed. He said, we could get away with it, which speaks volumes about the -- the extent to which -- this guy was subject to life without parole, which is, Justice Scalia, fundamentally different than death. This Court has said that only when the penalty is death, do you look at the character of the defendant as opposed to the nature of the crime and the act.

But the data shows -- and I think this Court has acknowledged -- it acknowledged in Thompson in any event -- that the -- that adolescents like the -- the mentally retarded are much less likely to be deterred by the prospect of an uncertain, even if probable, very substantial penalty. The -- no mature adult would have thought, as Chris Simmons reportedly said, I can get away with this because I'm 17 years old, when the mandatory punishment for him would have life in prison. It's -- it is not -- eliminating the death penalty as an option, which is -- which is imposed so rarely as to be more freakish than the death penalty was in Furman -- three States in the last 10 years, one -­

JUSTICE STEVENS: But of course, the death penalty was not a deterrent for any of the crimes described in the Alabama brief because those are all -­ crimes all occurred in States which execute people under 18.

MR. WAXMAN: Yes . . . .

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