Friday, March 04, 2005


The Supreme Court has just decided Roper v. Simmons, and held that the Eighth Amendment prohibits the execution of a convict who was under the age of eighteen at the time of the capital crime. Roper was Superintendent of the Missouri correctional center which presumably would carry out the sentence. The case was decided March 1, 2005; it was a 5-4 decision, and the majority opinion was written by Justice Kennedy. This case, and other Supreme Court cases, may be viewed free of charge at Findlaw (

The Eight Amendment provides, "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." The Bill of Rights (first ten amendments) apply to the national legislature, Congress; and following the adoption of the Fourteenth Amendment, which expressly limits the powers of the States, the Supreme Court has taken portions of the Bill of Rights and made them applicable to the States also. The Eighth Amendment is one of those which the Supreme Courts says is binding on the States because of the adoption of the Fourteenth Amendment, with its due process clause.

Not all of the Bill of Rights is binding on the States. For example, the Fifth Amendment provides a privilege against self-incrimination ("He took the Fifth."); and the Fifth Amendment also provides that no one shall be prosecuted for a felony except upon indictment by a grand jury. The grand jury requirement is not binding on the States. You will see cases prosecuted by information (written charge by the District Attorney) after a preliminary hearing before a magistrate (the magistrate finds probable cause and binds the accused over for prosecution). Suffice it to say at this time, that the Eighth Amendment applies to the States, and now execution of convicts under 18 at the time of the capital crime, is forbidden as "cruel and unusual punishment." What is "cruel and unusual" depends in part on ". . . the evolving standards of decency that mark the progress of a maturing society."

In 1989, by a 5-4 decision, the opposite result was reached by the Supreme Court in Stanford v. Kentucky, 492 U.S. 361 (1989). In that case, the Court ruled that the Eighth Amendment did not prohibit the execution of convicts whose capital crime occurred when the offender was under 18 years of age (but over 15 years of age).

In this Roper case, over the objection of three of the dissenting justices, foreign attitudes were considered. The majority states that only seven countries other than the United States have executed juvenile offenders since 1990: Iran, Pakistan, Saudi Arabia, Yemen, Nigeria, the Democratic Republic of Congo, and China.

For punishment of death to be cruel and unusual, it need not be inherently barbaric; it may also be excessive in relation to the crime. Excessive in relation to the killer. Here Simmons was 17 years old and five months; he planned a burglary and murder, enlisted other juveniles, stated that he would get away with it because he was a juvenile, committed the burglary, took the woman victim, tied and duct-taped, and threw her off a bridge into a river to drown, all as he planned (and related his intentions) in advance. In the Stanford case, now overruled, the crimes were worse but there was less planning.

One interesting analogy, by dissenting Justice Scalia. The majority had pointed out that so many States were against the death penalty for juveniles, and included in those States against such penalty, those States which had abolished the death penalty entirely. Justice Scalia found fault with that statistic. He said ". . . Consulting States that bar the death penalty concerning the necessity of making an exception to the penalty for offenders under 18 is rather like including old-order Amishmen in a consumer-preference poll on the electric car. Of course they don't like it, but that sheds no light whatever on the point at issue. That 12 States favor no executions says something about consensus against the death penalty, but nothing -- absolutely nothing --about consensus that offenders under 18 deserve special immunity from such a penalty.

Sunday, February 27, 2005


There are news reports today that the accused who was arrested in Kansas on BTK murder charges has begun to talk to the police. He is reported to be telling them about several murders, over a period of years. The officers will testify that BTK was given his Miranda rights, that the ritual of "advice of rights" was followed to the letter. They may even have a taped (video or audio) record of the statements, but less likely of the advice and "knowing and intelligent waiver." BTK had a right to have an attorney present during questioning. He has the right just like Timothy McVeigh did when he was questioned about the bomb and the Oklahoma federal building. They waive the right to the attorney.

They know that if they want an attorney, to consult with before questioning, or if they want to have an attorney during questioning, they can merely say so. They know that it is not proper for the police to use force or violence, or threats of force or violence, to get a confession. They know that the police cannot use any mental coercion, such as sleep deprivation. They know that the police cannot use a promise of reward or leniency. [In the case of David Cooper Nelson (1959), the one and only to ultimately get the gas chamber in New Mexico, the Chief of the New Mexico State Police told the accused that ". . . he would not fry if he copped a plea." A confession followed, and was used at trial. The first conviction was reversed. The second conviction, without the confession, resulted in death in the gas chamber.]

The accused persons know that mistreatment by police, as in New York Blue television, will not be permitted in a Court of law. They know that if they ask for an attorney, there will be no questioning until an attorney is obtained for them, free of charge. The best possible thing for them is to ask for an attorney. The attorney will surely tell them to remain silent. The attorney can also contact the authorities and say I represent the accused and I do not want you to question him unless I am present, and that will be never. TV shows lawyers sitting by while officers question their clients. Where does this actually happen?

What the prisoner does not know, and the police will not tell him, is that if he asks for a lawyer [I hate that term, "lawyers up."], and remains silent, his silence and his request for a lawyer can never be mentioned to the jury. What the prisoner does not know, and the police will not tell him, is that when they say that an attorney will be provided for him to be with him during questioning, the police have no intention of providing him an attorney. If he waives his right to an attorney, they will go ahead and take the confession. If he says he wants the attorney, he is returned to his cell and questioning stops. No force; no theats; no physical nor mental coercion; no cajolery; and no comment to the jury later.

If no taped record is made of the "waiver," we must take the word of the officers as to whether the accused waived his rights, gave a "knowing, intelligent waiver" of his rights to an attorney and to remain silent. The reason we have a Miranda case (June 13, 1966) is because we do not trust the officers to refrain from beating confessions out of prisoners. We do not trust the officers to testify truthfully as to whether they beat Joe Blow, but we do trust the officers to testify truthfully as to whether Joe Blow was advised of his rights and knowingly and intelligently waived his rights.

There is no requirement that the advice and waiver be recorded by any means. Why is that? The Miranda rule penalizes the weak, the ignorant, the stupid, the frightened, the mentally ill, and those overcome by guilt. Are we proud of a procedure which accepts confessions from such people, but prohibits us from drawing an inference of guilt from silence and failure to testify (for example, O. J. Simpson and Robert Blake)? Miranda v. Arizona (1966) and Griffin v. California (1965) are a one-two punch to common sense and fairness.