Roper v. Simmons response: Death penalty and minors

The eighth amendment holds that “excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted”. This amendment is applicable to the states via the fourteenth amendment. In Roper v. Simmons (2005), the constitutional question that arises involves the death penalty and its administration to minors, in accordance with the eighth amendment. The Court held that persons under the age of eighteen were not subject to capital punishment, regardless of the crime committed. The Court viewed the death penalty as “cruel and unusual” when pertaining to juveniles, which in turn violated the eighth amendment to the U.S. Constitution. I however hold that the restriction on the distribution of the death penalty to minors cannot and should not be applied uniformly every time.

                Although I believe that the death penalty should not be inflicted upon minors under the age of fifteen, there are no major developmental or societal change that occurs overnight between the ages of seventeen and eighteen that should exclude someone from receiving the death penalty. Rather, I would argue that if Roper is valid, then a statute mandating that no one under the age of twenty-five be subject to capital punishment should be valid as well. It has been shown that cognitive development can extend into a person’s mid-twenties and does not just stop once someone reaches what is termed to be “adulthood”.

                In the Court’s opinion, Justice Kennedy paid too much attention to the defendant’s age, rather than the severity of the crime committed. Simmons, only seventeen at the time he committed murder, demonstrated intent, premeditation and committed robbery, which are all aggravating circumstances when related to murder. Essentially, the Court was able to dismiss Simmons as a “juvenile” because they used scientific data concerning developing “minors” to support a societal definition of what constitutes a “juvenile”. This worked in favor of Simmons.

                Had Simmons been eighteen when he committed the same exact murder, he would have been subject to the death penalty. In order to receive the death penalty, one must not only murder another individual, but must also meet one of three “aggravating” circumstances, as set forth in Gregg v. Georgia (1976). Simmons demonstrated intent through premeditation (by telling his friends details of the crime before he committed it), as well as coupling burglary with murder. One could even potentially argue that the murder was especially “heinous” due to the fact that duct tape, binding materials, and other torture-esque materials were used, but I will not take it that far. In their reasoning, the Court stated that Simmons should not be given the death penalty because he possessed premature reasoning and maturity skills, and also because he was irresponsible and “easily influenced”. Although this may be true of typical “juveniles”, Simmons displayed original intent in that the original idea to kill with the intent to burglarize was entirely his own, and he was the one who influenced his friends, who joined him in the crime.

                In conclusion, I would argue that although Simmons was only seventeen when he committed murder, he demonstrated a higher level of thinking and cognition, which is typical of adults. He specifically planned and acted on murder through his own processes, and took it one step further by aggravating the situation through robbery. Simmons sticks out as troubled among his peers. With that being said, death penalty restrictions on minors should not be uniformly enforced due to the fact that development can happen differently per individual, and “minors” by definition, such as Simmons, have the capability of committing adult like crimes despite their age. In my opinion, the Court got it wrong by focusing on juveniles as a whole, rather than the crime committed by a juvenile.

**submitted for LAW389.

What the lift on the ban of gay marriage in California means for Arizona

Today was a great day in American history. Whether you support gay rights or not, civil rights will eventually prevail. The 9th Circuit of Appeals, sitting on a 3 justice panel, lifted the ban on gay marriage, deeming the ban unconstitutional. This ban was known as Proposition 8. The court held that by banning gay marriage, the rights of the LGBT community were abridged, and therefore equal protection of the law under the 14th amendment was violated. This case lines up with Brown v. Board of Education in my eyes. "Separate but equal is inherently unequal". The separate institutions of marriage being represented (civil unions and the "sanctity" of marriage"). Although unequal options are available for gays, it violates the Equal Protection clause.
One might ask: What does this mean for me? More specifically, what does this mean for Arizona?
Arizona, along with California, and several other states make up the 9th circuit of appeals, the largest circuit in the country. By ruling on the matter, the California case sets precedence and legitimacy on the table for other states willing to try to allow for gay marriage. With that being said, if Arizona does choose to fight for gay rights (which is eventually possible, it might just take a while), three DIFFERENT judges will hear the case, as the judges in the circuit rotate in 3 person panels. Judges on the panel can have a high amount of significance as to how the case will be decided, in terms of who appointed them/how they were appointed, and their personal preferences. (Courts aren't as unbiased as they seem). For example, if Arizona were to put a Prop 8-esque bill on the table, and it went to court, and it failed, it would look extremely bad for Arizona. Civil rights should not be determined by state borders, but the 10th amendment allows for this. The same goes for the death penalty. The state that you murder in can decide if you are murdered. So it is possible that gay marriage will remain fragmented for some time. Any rights not afforded to the federal government via the constitution are reserved to the people (the state). So even though California allows gay marriage, it doesnt mean that Arizona has to for the sake of "fairness".
Ideally, I would like to see Arizona BAN gay marriage. Strike down any gay marriage friendly legislation it sees or passes. This seems like a backwards view to have, however has the power to appeal to the United States Supreme Court for interpretation.
So lets say Arizona says no, no gay marriage. It violates the sanctity of marriage, and is not constitutional, or ethical.
The case then has easier access to the top since one state over, gay marriage is allowed. If the USSC rules in favor of gay marriage, it will allow for a uniform implentation and application. The USSC enforces the "law of the land", and if ruled upon, will set a grid of sorts for gay marriage to flow onto. Then it will not be a matter of the states, it will be FEDERAL LAW, which has a lot more status than individual state law. Since states cannot preempt or trump federal law and decisions, gay marriage will be available everywhere instead of just in select states. Sometimes we need to sacrifice to gain. Today California gained, and if one "red state" is willing to sacrifice, then so be it.

"Love is stronger than hate any day."

To Kill or be Killed: An argument in support of the death penalty

To Kill or be Killed

            In his article “In Defense of the Death Penalty”, Ernest van den Haag argues that society, in order to preserve justice, must retain and use the death penalty for deserving crimes. Without the death penalty, van den Haag argues that equal injustice will emerge. Van den Haag makes several points to enforce his belief, I will touch on two. Firstly, van den Haag states that unequal justice is preferred over equal injustice. Justice requires punishing as many of the guilty as possible, while saving as many as the innocent as possible. Resting on this point, van den Haag invalidates discrimination in terms of death penalty use. Just because some guilty evade the irreversible death penalty, doesn’t make those who received it less deserving. Secondly, van den Haag argues that incarcerating murderers with those guilty of lesser crimes “cheapens human life” (van den Haag, 840), and that the crime of murder places the murderer apart from the victim in terms of human, inalienable rights. As a supporter of the death penalty, I believe that van den Haag’s position on the death penalty is valid and ultimately convincing.
            One of van den Haag’s main points is that unequal justice is preferred over equal injustice. He further argues that when it comes to morality, justice must always be chosen over equality, in terms of the application of the death penalty. The purpose of our justice system is to punish as many guilty individuals as possible, while saving as many innocent individuals as possible from punishment or death. Van den Haag explains that “justice cannot ever permit sparring some guilty persons, or punishing some innocent ones, for the sake of equality” (van den Haag, 836). For example, an individual guilty of murder, who deserves the death penalty, should not be exempt from receiving it simply because another equally guilty person did not receive it. The same goes for innocent individuals. An innocent individual should not be punished or harmed because another innocent person in the past did not escape it. Although van den Haag notes that unequal justice is “morally repellent”, it is still justice, and should not be disregarded on terms of equality. Van den Haag ends this argument by stating that equality should be “extended and enforced”, but not at the hands of justice. In summary, the guilty remain guilty regardless of the punishment they do or do not receive, which does not warrant the abolition of the death penalty.

            Van den Haag also argues for the death penalty on basis of the forfeiture view. This view holds that once an individual commits murder, the sole act of the crime sets apart murderer and victim, and therefore the murderer does not deserve to live, as they unjustly took the life of an innocent individual. Essentially, the murderer forfeits their right to be a part of the community in which they murdered, and their right to human solidarity. Van den Haag states “the convict is rejected by human society, found unworthy of sharing life with it” (van den Haag, 840). He goes on to say that if an individual chooses to forfeit their human to right to live by taking the life of another, and society doesn’t put them to death, that it is serving an injustice and denying value and worth to human life. Therefore, we must retain the death penalty to serve as the ultimate punishment for the ultimate crime.

            Stephen Nathanson, author of “An Eye for an Eye?” would probably take a different side than van den Haag on the issue of the use and enforcement of the death penalty. Nathanson argues that although a person forfeits some of their societal rights after committing murder, they do not forfeit their right to life and human dignity. Using the concept of “human desert” (Nathanson, 484), Nathanson argues that everyone, regardless of the crime committed, deserves a certain standard of treatment that is inconsistent with the death penalty. He goes on to say that our Framers granted everyone irrevocable, inalienable rights that cannot be forfeited at the expense of justice. Furthermore, Nathanson states that when we use restraint, and spare the lives of the convicted, that we possess a power to “communicate the importance of killing and other acts of violence” (Nathanson, 486). By abolishing the death penalty, we set an example and guidelines as to what defines proper behavior, which could have long-term, beneficial effects.

            If van den Haag were to respond to Nathanson’s objection to the death penalty, he would state that by eliminating the death penalty, equal injustice would prevail. Instead of showing that violence is wrong by eliminating violence, via the death penalty, you would allow immunity to the guilty, and deny them the ultimate punishment for their ultimate crime. Van den Haag would further argue that once someone commits murder, he or she forfeits their right to be a part of society, which includes their inalienable rights, and the right to human dignity. By not executing the murderer, we cheapen human life by stating that nothing is worth dying for, not even another human life. In conclusion to van den Haag’s rebuttle, he would state that if a small probability of saving the lives of a few innocent individuals exists, at the expense of a convicted murderer, morality would always chose saving the lives of the innocent individuals, over the sole convicted murderer.

            I ultimately agree with van den Haag’s position on the death penalty. Van den Haag’s opinion follows in accordance with Occam’s Razor, which states that the simplest view or way is often right, or the most coherent. Van den Haag’s position rests on the simple notion that we should punish as many guilty, and save as many innocent people as possible. Any mistakes made, or discrimination resulting from the use of the death penalty are flaws of the system, and must be corrected when found, yet remain an illogical reason to repeal it in its entirety. As a supporter of the death penalty, my views fall in line with those of van den Haag. Once a person consciously makes a decision to take the life of another innocent individual, the murderer forfeits their right to coexist with the rest of human society. Although the physical act of murdering a murderer is the same as an individual murdering another, the morality and rationale behind it is very different, and the death penalty must remain available to punish those deserving of it.

Paper submitted for POL324 do not steal.

Do you dislike the government, or the majority?

Recently, there has been a lot of media attention devoted to the 99% vs 1%, and the whole concept of "occupy" (insert your city here). It is okay to believe in these protests and functions if you are using them for the right reasons. I understand that we, as citizens, have the right to peacefully assemble, however camping outside in a tent, rounding up citations is NOT the purpose of these events.
This phenomena deserves further commentation and consideration.
Who are we really mad at?
One could say the government or the "system", but I would be one to argue with you.
Maybe who we're mad at and fed up with is ourselves.
Three points can explicate my theory, some of which are based on concepts presented by John Stuart Mill in his piece entitled "On Liberty". It is in the best interest of government to provide for and protect the people, however, who protects the people from themselves?

1. Facing the majority: The government is in place to guide and direct the people towards a favorable place. One in which they have a voice, and feel as if they matter. However, how can a sufficient governmental body provide for the beliefs and views of EVERYONE, all at once? The answer is: it can't. Let's face it. We aren't necessarily mad at Obama, or at our Representative. Most of us will never meet the President, and some of us don't even know who represents us in our legislative bodies. But we are mad at the majority. Dont't like abortion? Someone does. Hate gays? Someone loves them. Don't want to cut Social Security? Someone does. However what we must realize is that "someone" always on the other side, represents the minority to you. And throughout time, majorities make the decision. Maybe you're mad because Obama ended DADT? News Flash. It wasn't just him. The bill was proposed and decided on via governmental bodies. A President cannot act without the consent of Congress, and without the will of the majority. You must realize that you cannot be the majority all of the time, for that is selfish. Maybe the system is designed to keep us happy in our personal beliefs for 4-8 years, and then maybe we are supposed to get bad tastes in our mouth and get a little mad. Anger inspires change.

2. The Media and Societal Pressures: Should we conform to what others believe just because your side is outnumbered? NO. Hold strong to your beliefs. Sometimes I wonder what our system would be like if television was never accepted, or created. Instead of conforming your views to fit a particular candidate or party platform, create your own, We shouldn't have to believe in one President to lead and guide us, for that is why we have character and intellect. That being said, I am sick of the way the media pits one side against another. There is no way the average American citizen, of a comparable educational level can infer a politicians beliefs or platform in a thirty second ad doing nothing but smack talking the other person. This constitutes bullying and greed. That being said, I will move on to point three.

3. Set the hate aside: Instead of being mad that your part of the general public isn't in control doesnt mean you should go on rampages bashing the other side. Wait. Patience will win. No one person can control the outcome, but society as a whole can. Maybe if we stop pointing out differences, and find positives in each others political preferences, we can advance.

To conclude I would just like to point out that all of this is possible.
When Gabrielle Giffords returned to the floor to cast her vote concerning smuggling and the US/Mexico border, the vote was unanimous. That's right. 408-0. Wanna know why? Because for one day, for one moment everyone put away their predispositions and beliefs and came together for the better good of the people. It should not take a gunshot wound to the head to inspire this.

Shelley v. Kraemer and racial/social stigmas

This entry provides a response to the United States Supreme Court decision of Shelley v. Kraemer in 1948. A case that was held separate from Plessy v. Ferguson, as what I see as a technicality of the judicial system. As you read, ask yourself a question:
If you were an African American citizen in the times before the Civil Rights Act, would you want to be integrated with whites who held severe judgments and views towards you? Were restrictive covenants, Jim Crow Laws, and "separate but equal" decisions viewed differently by blacks? Were they an expression of the times?
It's easy to look back in history and become ashamed or embarassed of previous actions, and to view them as all backwards and wrong. But would you have acted differently in 1948?

Shelley v. Kraemer, 334 U.S. 1 (1948)

*Paper submitted for LAW389. Do not steal.

Due to restrictive covenants used and enforced at the time, the Shelley’s were unable to occupy a home they had purchased in a predominately white neighborhood, because they were African American. The state Supreme Court of Missouri ruled in favor of Kraemer, after which the case was granted certiorari by the United States Supreme Court. The USSC ruled in favor of the Shelley’s, but not for the reasons one would think.

            The 14^th Amendment provides that ‘no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the U.S….’ nor can any state deprive any person equal protection of the laws. The thing that struck me as the heart of this issue is the fact that the covenant, at the time, would have been perfectly valid, if Kraemer didn’t sue the Shelley’s. What invalidated the restrictive covenant was the fact the State Supreme Court of Missouri ruled on the issue.

            A covenant represents a private agreement, between private individuals, related to private property. Something similar can be seen in Plessy V. Ferguson, in which the USSC could not negate a racist train-car law calling for the separation of peoples based on race. The reason why the Court couldn’t rule in favor of Plessy was due to the fact that the issue at hand was a private one that could not be controlled by the federal or state governments. African Americans at the time were granted political “equality”, however, they received little social equality due to these covenants and Jim Crow-esque laws.

            This case, however, struck a different chord. The United States Supreme Court was able to rule on this case in favor of the Shelley’s because the State Supreme Court of Missouri did not have authority to rule on the case provided to it at the time. By ruling in favor of the Kraemer’s, the state court turned a private agreement amongst individuals into a state issue, which they did not have the authority to do. Had the state court not given an opinion on the issue, restrictive covenants might have remained valid (in practice) for a longer period of time.

            In Corrigan v. Buckley (1926), the court stated that the inhibition of the constitutional provisions in question did not apply, because the restrictive covenants were not an action of the state or federal government. They were simply agreements between private property owners and lessees or purchasers. The main difference between Buckley and Kraemer, is the fact that the Buckley case was dismissed and no judicial enforcement or ruling was granted. In their opinion of Kraemer, the court states that if the covenants were imposed by state statute or local ordinance, they would be in conflict with the Fourteenth Amendment.

            Essentially the court held that the Fourteenth Amendment was not intended to abridge the rights and actions of private individuals, rather was implemented to bar the states from discrimination through laws and enactments. With that being said, standing alone, the restrictive covenant would have remained valid and the Shelley’s would have lost.

            The simple fact that the Supreme Court of Missouri ruled on the case, gave it the status it needed to become a part of state action. By ruling on and enforcing the covenant, a private contract between private individuals, the state of Missouri gave status and a constitutional basis for the Shelley’s to lean on in this particular case. By ruling in favor of Kraemer, the State of Missouri denied the Shelley’s rights guaranteed by the 14^th amendment.

            This case is important in my eyes because it made judicial officials a part of the state in which they rule. This gave the officials legitimacy (although in a backwards way), and held them responsible for the decisions they were making, in response to racial covenants and laws. Had the State Supreme Court of Missouri dismissed the case, or ruled in a different manner, the case would have never reached the USSC for interpretation. This case both protects the private contracts of individuals from state regulation, and also prevents higher bodies of law from interpreting them to deny and abridge rights guaranteed to every American citizen, regardless of race.

            It almost seems that the Shelley’s won due to a technicality error made at the State level, however without this case, it is hard to tell what the outcome of restrictive covenants would have been like in the future.