Posted by Eugene Volokh:
Not Quite the Same:
I think the Supreme Court's decision holding that the death penalty
may not be imposed on killers who were 16 or 17 at the time of their
crimes was unsound, for the reasons that Orin has noted here, and that
Justice Scalia noted in dissent. I'm not sure what I think of the
execution of such killers as a policy matter, but I think Justice
Scalia is right that this is not unconstitutional.
Nonetheless, I'm not persuaded by the link that some readers have
drawn between this and a point in yesterday's post about the
[1]killings of Muslim women by their families:
In many cases, fathers -- and sometimes even mothers -- single out
their youngest son to do the killing, Boehmecke said, "because they
know minors will get lighter sentences from German judges." . . .
Currently, six boys are serving time in Berlin's juvenile prison
for honor killings.
I think many would-be killers (and those who influence them) may be
swayed by the possibility of relatively light sentences, especially if
they are just several years (which is my tentative sense from the
paragraph above). But I think few would-be killers, especially
teenagers, would think "I won't commit this crime if there's a small
chance I'll get the death penalty; but I will do it if all it means is
that I'll get life without parole." The marginal difference in
deterrent, I suspect, is pretty modest there -- whereas the marginal
difference between several years in prison and many more years, which
it sounds like is the situation in Germany, would be quite
substantial.
This is my intuitive sense; I haven't read the studies, about which I
hear conflicting things. Nonetheless, it's a pretty strong intuition.
I don't think we're going to have many more honor killings (or other
killings) by 17-year-olds as a result of this decision.
At the same time, I do agree on one point: I don't think the U.S.
Constitution should be interpreted in light of the moral judgments of
Germans or Englishmen (or perhaps more precisely the members of German
or English legal elites), who may have very different cultural and
moral assumptions about the propriety of punishment. That 20 American
states endorse something strikes me as more significant for
interpreting our Constitution (if present views are to be considered)
than 50 to 100 foreign countries' endorsing something. (I say 50 to
100 rather than the full complement of 200+ because 50 to 100 is the
upper limit of the number of countries that are democratic enough that
we should see their "views" as anything other than the political
judgments of the strongmen or cliques that run them.)
References
1. http://volokh.com/archives/archive_2005_02_27-2005_03_05.shtml#1109800112
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