Posted by Orin Kerr:
Roper v. Simmons and Capital Litigation:
I have just finished working my way through the opinions in [1]Roper
v. Simmons. As someone who greatly values stare decisis, I was
disappointed by Justice Kennedy's majority opinion. There just isn't
much there to justify overruling a 16-year-old precedent and striking
down 18 state laws.
One interesting part of Roper is the incentives it creates (together
with [2]Atkins v. Virginia) for those seeking judicial abolition of
the death penalty. Roper and Atkins tell capital defense litigators to
delay their cases for as many years as possible. Drag out the appeals
for a long, long time. During that period, have activists try to
encourage legislators in a few select states to enact new legislative
restrictions on the death penalty. It doesn't matter if those
restrictions have any actual effect on how cases are charged; bans in
states that do not actually bring any death penalty cases are fine, as
the real audience is the Supreme Court. Years down the road, you can
then use the new legislative restrictions in a few states as
"objective indicia of consensus" that the practice of using the death
penalty in such cases is impermissible. In effect, the changing
practice in a handful of states can be bootstrapped by the courts into
a constitutional ban that applies to all states.
Notably, the bootstrapping can be retroactive: evidence of changing
attitudes in years following the crime and conviction can be used to
trump then-governing law. This seems to be what happened in Roper. In
1989, the Court held that it was permissible to execute persons for
murders committed at the age of 16 and 17. In 1993, Christopher
Simmons committeed his heinous murder, and in 1994, Simmons was
convicted and sentenced to death. Then, in the 11 years after Simmons
was convicted and before the Supreme Court decided its case, 4 states
decided end potential juvenile capital liability. [At least I think
the states acted after 1994; to be honest, it's hard to tell from the
Streib chart that the Court relies on. If anyone knows the exact
dates, please e-mail me.] The action of the 4 states then became the
basis for an alleged "consensus" in the direction of ending the
juvenile death penalty. Had Roper been scheduled for execution soon
after his conviction, executing him presumably would have been
constitutional. Executing him apparently became unconstitutional only
years later, after Atkins loosened up the Eighth Amendment a bit and a
few states had banned the juvenile death penalty.
References
1. http://scotus.ap.org/scotus/03-633p.zo.pdf
2. http://supct.law.cornell.edu/supct/html/00-8452.ZS.html
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