Once again the Supremes are faced with a contentious Eight Amendment case: This time around, they’re charged with deciding whether it’s cruel and unusual to execute murderers who committed their crime at age 16 or 17. We’re in a small and undistinguished club of nations who allow such executions, joined by Saudi Arabia, Iran, China, and a handful of others.
What’s interesting from a jurisprudential perspective is that the Eight Amendment seems like it ought to pose a particular problem for originalist types who normally recoil from language like “evolving standards of decency.” But “unusual” is explicitly contextual, and even “cruel” is going to be a hard bullet for an originalist to bite. After all, there was enormous penal reform during the late 18th century, so pegging down a consensus on what would’ve counted as “cruel” then would be a dicey proposition. And even if we could do it, do we really want to conclude that confining someone in, say, a prison with 1810-level sanitation, or in public stocks, wouldn’t count as cruel just because those practices were current at the time of the Amendment’s ratification? Surely (one hopes) not.
In this particular case, though, I’m not sure. I tend to oppose the death penalty for pragmatic more than principled reasons. (That is, if someone’s done something sufficiently wicked that we see no problem locking him in a concrete cube with gangs of thugs for 50 years, it’s not obvious why a death sentence is inherently beyond the pale. But as currently applied, there are clearly too many errors and inequities for it to be necessary when the person’s no longer a threat.) But if we’re going to have it, I’m not convinced the difference between a 17 year old murderer and an 18 year old one is intrinsically so significant. The broad justification for picking semi-arbitrary birthday-triggered ages at which one can drink, smoke, vote, and so on is that it’d be unwieldy to attempt to determine for each person whether they’re sufficiently responsible to consent in each case. Fine. But people on trial for murder are already subject to intense personal scrutiny of their motives, their state of mind during the act, their ability to understand what they’ve done, and so on. The general medical evidence being adduced about the generally greater impulsiveness (and, the argument runs, lesser responsibility) of 16 and 16 year olds is probably right. But why rely on those generalizations when a convict is already being scrutinized at the individual level? It may be true, after all, that statistically men have more upper body strength, say, than women. But that wouldn’t be relevant to, say, a fire department screening applicants, since they’re already (I assume; don’t know a whole lot about FD screening processes) subjecting each candidate to the same set of physical tests.