Thursday, June 23, 2005

Believe it or not...

The State of Texas has actually taken a step to follow the Supreme Court in regard to a capital punishment ruling.

KUHF and the Houston Chronicle have reported that Texas Gov. Rick Perry has commuted the sentences of 28 juvenile convicts on Texas Death Row.

The Supreme Court held Roper v. Simmons last March, in a somewhat controversial decision, that the execution of juveniles was unconstitutional. Appropriately following that decision, Perry yesterday commuted the death sentences of 28 on death row to life in prison. I thought this was a good quote from a staff attorney with the Texas Defender Service,
Morris Moon, an attorney who defended two of the juveniles convicted in Harris County, praised Perry for acting.
''I'm glad it's finally happened. I'm glad that Texas has finally recognized that they have to follow a Supreme Court ruling," Moon said.
Moon, a staff attorney with the Texas Defender Service, represented Johnnie Bernal and Nanon McKewn Williams.

As unusual as it sounds, it's not everyday that the State of Texas actually pays attention to the Supreme Court when it comes to death penalty law. So this really is news...

A couple of more points:
In my opinion, Justice Kennedy's decision in Roper should not have been as criticized and controversial as it has since been. Kennedy's decision has primarily been assaulted because of his noting of international trends in the area of juvenile execution. (Note that the Houston Chronicle noted at the time of the decision, "Juvenile offenders have been put to death in recent years in just a few other countries, including Iran, Pakistan, China and Saudi Arabia. All those countries have gone on record as opposing capital punishment for minors.") But the opinion wasn't based on int'l law - it was based on the 8th (and 14th) Amendment(s).
The differences between juvenile and adult offenders are too marked and well understood to risk allowing a youthful person to receive the death penalty despite insufficient culpability. An unacceptable likelihood exists that the brutality or cold-blooded nature of any particular crime would overpower mitigating arguments based on youth as a matter of course, even where the juvenile offender's objective immaturity, vulnerability, and lack of true depravity should require a sentence less severe than death. In some cases a defendant's youth may even be counted against him. In this very case, as we noted above, the prosecutor argued Simmons' youth was aggravating rather than mitigating. While this sort of overreaching could be corrected by a particular rule to ensure that the mitigating force of youth is not overlooked, that would not address our larger concerns.

And note the wonderful concurrence by Justice Stevens (joined by Justice Ginsburg) in Roper:
Perhaps even more important than our specific holding today is our reaffirmation of the basic principle that informs the Court's interpretation of the Eighth Amendment. If the meaning of the Amendment has been frozen when it was originally drafted, it would impose no impediment to the execution of 7-year-old children today. ... The evolving standards of decency that have driven our construction of this critically important part of the Bill of Rights foreclose any such reading of the Amendment. In the best tradition of common law, the pace of that evolution is a matter for continuing debate; but that our understanding of the Constitution does change from time to time has been settled since John Marshall breathed life into its text. If great lawyers of his day - Alexander Hamilton, for example - were sitting with us today, I would expect them to join Justice Kennedy's opinion of the Court. In all events, I do so without hesitation.

Beautiful stuff. Roper was the correct decision, and the criticism related to the use of int'l law is simply right-wing politics. It (the criticism) has nothing to do with the Constitution or our law. [See my other posts on the High Court's view of int'l law - Justice Stevens here; and Justice O'Connor here.]

Finally, the Supreme Court handed down an interesting, but little covered capital punishment decision on Monday that could really change habeas appeals for a number of death row inmates. In Rompilla v. Beard, the Court (through Justice Souter) held that a death penalty defendant's counsel is bound to make reasonable efforts to obtain and review material that it is reasonably certain the prosecution will use as evidence of aggravating factors in arguing for the death penalty. The Court (through a Justice O'Connor concurrence) specifically noted that this is not a "rule" to be followed, but part of the case-by-case analysis of ineffective counsel. If this decision can be broadened, it could be of benefit to so many death row convicts who were incompetently represented by state appointed counsel. See SCOTUSblog's analysis of Rompilla here.

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