Supreme Court decides kids are retards... kind of

Once again more of that legal mumbo jumbo. That's why I turn to the experts on this stuff and LegalXXX seems to have the best roundup I've found. And he puts it into layman's terms for us simple wookies: Now we get to the fun “national consensus” part of the opinion. Kennedy attempts to prove that there exists a national consensus against executing juveniles. There is a problem: the majority of states with the death penalty still allow for the execution of juveniles. That’s not a barrier to Kennedy, because “even in the 20 States without a formal prohibition on executing juveniles, the practice is infrequent.” So even though a majority of relevant states permit executing juveniles, and juveniles actually ARE executed–that is somehow evidence of a national consensus AGAINST executing juveniles? That’s not even close to persuasive. What we’re left with is that had these states only executed MORE juveniles, then everything would have been fine. Thank God for Texas’ enthusiastic use of its death penalty, because otherwise, under Kennedy’s “logic”–the death penalty might itself run afoul of Kennedy... The context of this discussion of the mental retardation and hence, culpability of the accused is also grossly misplaced and ultimately not relevant to the question of executing juveniles. Even accepting, arguendo that “[t]he impairments of mentally retarded offenders make it less defensible to impose the death penalty as retribution for past crimes and less likely that the death penalty will have a real deterrent effect” is not sufficiently analogous to extend to a 17 year old that commits murder. The determination that 18 is the age of majority and that those below that age are juveniles is an entirely arbitrary distinction. It’s a useful generalization, but not a dispositive one. We routinely allow minors to become emancipated from their parents and enjoy the full rights and obligations of adults. Aside from that, the argument, implicit in Kennedy’s invocation of Atkins, is that a person who is a day short of his 18th birthday is the functional equivalent of a mentally retarded person. This is asinine. Suppose a 34 year old man murder a half dozen women but he is determined to have the mental capacity of a 17 year old–by Kennedy’s logic, he can not be put to death. Further, the determination that one is mentally retarded is NECESSARILY a fact-specific inquiry. Whether a person with a mental deficiency lacked the requisite mental intent to be culpable cannot be a blanket conclusion–it is necessarily a sliding scale that holds some mentally deficient to be culpable and other not. However, Kennedy’s opinion, by extending this rationale to juveniles is that those under 18 will UNIFORMLY be considered to lack the sufficient culpability to warrant the death penalty. Whether one is a day short of his 18th birthday or is a 7-year old makes no difference, Kennedy’s opinion recognizes no distinctions. Now I admit that when I first heard about this ruling I thought, that can't be all bad. Who wants to execute a 16 year old anyway. But the more you think about it the more exceptions you can think of to the rule, so why not approach this on a case by case basis as opposed to banning it across the board?