So now the U.S. Supreme Court is writing decisions based on what Our Betters in Europe think is best. That's what the Big Bench did on Tuesday when it issued a 5-4 decision, written by Justice Anthony Kennedy, overturning the death penalty for crimes committed by minors.
Let me stipulate. The outcome -- an end to executions of those who committed crimes as minors -- isn't what bothers me here. There is an argument to be made that, as per the Eighth Amendment, it is "cruel and unusual" to execute those convicted of crimes committed when they were minors. Minors, as Kennedy put it, are "categorically less culpable than the average criminal."
But the court didn't limit its guidance to the U.S. Constitution. Kennedy wrote that the court can and should consider "the overwhelming weight of international opinion against the juvenile death penalty," including opposition among "leading members of the Western European community."
Be afraid, America. Be very afraid. European Union countries don't simply oppose capital punishment; they also oppose life without parole and mete out notoriously short sentences for heinous crimes. In recent years, a German court essentially sentenced a man who killed and ate another man -- the killer was so proud he videotaped everything -- to eight and a half years in prison. He is expected to walk free after five years.
The International Criminal Tribunal on Yugoslavia found a Bosnian Serb colonel guilty of aiding and abetting the genocide that resulted in thousands of deaths. His sentence: 18 years.
Don't blame European juries. Judges made the above rulings, on a continent where juries get little respect.
If you're wondering who died and made Justice Kennedy -- or Western Europe -- king, consider that Kennedy also referred to the U.N. Convention on the Rights of the Child that prohibited the execution of minors -- even though the United States failed to ratify that treaty. The definition of an activist judge could be a judge who calls on the government to adhere to a treaty it rejected.
Kennedy wasn't even on solid ground factually. "In sum," he wrote, "it is fair to say that the United States now stands alone in a world that has turned its face against the juvenile-death penalty."
"That's not quite true," said University of California at Berkeley professor Franklin E. Zimring, who was quoted extensively in The New York Times in support of Kennedy's continental leanings. Iranian law prohibits executions of minors but considers a 10-year-old girl to be an adult, Zimring noted. In 2004, The Christian Science Monitor reported that five countries -- United States, China, Pakistan, Iran and Democratic Republic of Congo -- executed minors in the previous five years.
Michael Rushford of the pro-death penalty Criminal Justice Legal Foundation admitted that the roster of countries that still have the death penalty for adults doesn't exactly "help the pro-death penalty cause," as many of those countries don't cherish the notion of freedom. On the other hand, America does not own those countries' abuses. In the meantime, Rushford noted, "The Supreme Court has now said we're all going to wear the same socks and we're going to decide what a jury can decide."
That is the European Union model. Same socks. And jurors aren't welcome.
Kennedy also cited a "national consensus" in America against the juvenile-death penalty as a reason to overturn it. I must ask: Since when has the court issued rulings based on what average folk think?
Besides, if the Supreme Court did care what people thought, it wouldn't be looking to Europe to decipher the U.S. Constitution.
Zimring told me that the issue here isn't the 72 death-row inmates who committed capital murder as minors. Conservatives bristle at the mention of Europe, he explained, because, "As soon as you internationalize the discourse of capital punishment, then Arkansas no longer has a point."
That's right. But what else will Americans have to give up? Zimring noted that the United Nations has forced countries to end the juvenile-death penalty and the European Union forced Turkey to end capital punishment. He noted that the other countries complied for economic, not moral reasons.
Now, when countries have buckled to this pressure for the money, an America court interprets their surrender as an international trend against the death penalty. That is the EU way. Force dissenters to go along. Then boast that you have a consensus.
Individual rights? They're not high on the EU list. Then again, neither is punishment.
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