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October 15, 2004

Roper and categorial capital bars

The folks at the SCOTUS Blog have all the press accounts of the Roper argument assembled here, and many accounts highlight that Justice Kennedy was apparently moved by this amicus brief, authored by the state of Alabama and submitted on behalf of six states, which details a number of heinous murders committed by 16 and 17 year olds. Crime & Federalism explains here how the brief won him over, and further explains the effectiveness of the brief's advocacy for allowing states to execute persons who commit capital crimes as juveniles.

Though the facts of the murder cases in the Alabama brief are compelling, what really makes the brief effective is its framing of the issue before the Supreme Court in terms of individual cases. Such a framing is not inappropriate, since the Supreme Court is being asked to preclude the application of the death penalty in any individual case involving a juvenile offender. But, of course, the issue before the Court in Roper could be (and perhaps should be) framed in more systemic terms. For a terrific account of how best to cast arguments for categorical bars on the application of capital punishment, I highly recommend Carol Steiker & Jordan Steiker, Defending Categorical Exemptions to the Death Penalty: Reflections on the ABA's Resolutions Concerning the Execution of Juveniles and Persons with Mental Retardation, 61 Law & Contemp. Probs. 89 (Autumn 1998), which is available on-line here.

In other words, the real debate and question in Roper is whether a majority of the Supreme Court will focus on the sinner or on the system. I do not know how Roper is going to come out, but I do know the world is watching.

October 15, 2004 at 02:12 AM | Permalink


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