Analyzing the Supreme Court's Death Penalty Decision

This is a partial transcript of "Special Report With Brit Hume," March 2, 2005, that has been edited for clarity.

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BRIT HUME, HOST: Yesterday the Supreme Court (search), overturning a decision that made just 15 years ago, found by a 5 to 4 vote that the Constitution now forbids the execution of convicted killers for crimes committed when they were under 18. The court’s majority said things had changed since it’s earlier decision in 1989. It cited laws passed in various states and also spoke of the laws in other countries.

Justice Anthony Kennedy (search) wrote, "It is proper that we acknowledge the overwhelming weight of international opinion against the juvenile death penalty, resting in large part upon the understanding that the instability and emotional imbalance of young people may often be a factor in the crime."

Justice Antonin Scalia (search) wrote in dissent, "The Court thus proclaims itself sole arbiter of our nation’s moral standards. And in the course of discharging that awesome responsibility purports to take guidance from the views of foreign Courts and legislatures."

For more on this, we turn to our favorite law professor, Jonathan Turley, of George Washington University.

First of all, Jonathan, this case — the facts of this case were what? This convict did what?

JONATHAN TURLEY, LAW PROFESSOR, GWU: Well, actually, this individual could not be a worse sort. I mean there was some evidence that after they tied up this poor woman, after taking her from her home.

HUME: She was sort of a randomly selected victim, correct?

TURLEY: Yes. They took her to a bridge and threw her off. And she was still alive.

HUME: Bound and gagged?

TURLEY: That’s right.

HUME: Threw her in the water and she drowned?

TURLEY: Yes. It was just incredibly heinous crime. And what’s interesting is that this individual actually said that he thought since he was a minor, he could not be subject to the death penalty. So there was almost a taunting element to the record, to the court. Saying here is someone that actually played the margin and believed that he wouldn’t be executed.

So it was a particularly bad case for the court to actually reach this conclusion.

HUME: Now, the court found based upon its earlier decision it was simply set aside. And what had changed since then was what, exactly?

TURLEY: Well, that’s part of the controversy. Because in just 1989, you had the court say that you could execute 15 and 16-year-olds. And since then, five states have abandoned juvenile executions. But what Scalia said was that’s hardly overwhelming. That Scalia’s point is that the court has to resist before it starts to push the nation in a direction that it prefers, as opposed to a direction that the voters prefer.

HUME: Well, when the Supreme Court rules, obviously the court didn’t get much help from the framers of the Constitution when it wrote the strictures against cruel and unusual punishment. The framers didn’t say what that meant. Presumably that meant cruel and unusual punishment as it was considered at the time.

So obviously what public thought is on the subject is of some relevance. The court speaks here in this decision as I read it about a consensus, it says, "has formed since — that has formed since 1989 on this question." And it cites some states. Correct?

TURLEY: Right.

HUME: Do the states it cites, add up to a majority of the states that have the death penalty?

TURLEY: No. I mean this is really a question of how you count them. And it really — how you count it depends on how you view juvenile executions. What the majority is saying is that the majority of states don’t allow juvenile executions. What the dissent, what Scalia is saying is that really you should look at those states that allow for executions.

HUME: Of any kind.

TURLEY: Of any kind and this is less than 50 percent of those states. And what Scalia is saying you are going out way ahead on this issue. And there is a difference — a very critical fundamental difference. Scalia and the dissent does not like this evolving standard, where the court looks for a national consensus because it is so fluid.

HUME: Well, if the issue is national consensus, it would seem the most — the clearest evidence of that would be the actions of people who are bound by their profession to follow consensus. That is to say, politicians, people who are in legislatures.

So is there some compelling reason that the court cited why it would not be willing to wait for the people — the voters to either do this, or the politicians whom they elected do this?

TURLEY: Well, in most past cases, they have waited for the vast majority of states not just to show — not just to do things like juvenile executions. But actually indicate an opposition to them, a strong philosophical shift among the legislatures. And that’s one of the interesting aspects.

HUME: Well, if that happens, they don’t need to do it because presumably they will pass laws that ban that sort of punishment. Right?

TURLEY: Right. But presumably the court can come in at some point, not wait for all 50 states to do it, and say you know what? The overwhelming majority here of the country has clearly shown that this is cruel and unusual. But the problem here is that the court seems to be getting out in front. And the reliance on international standards clearly has an effect on this court.

HUME: What about that? I hear a lot about that. People are critical of this. They say it doesn’t represent a real legal authority at all. What about that, talking about what other countries are doing? Is that supposedly relevant to…

TURLEY: Well, according to a majority, and I’m talking six. Because Sandra Day O’Connor (search) joined the five in saying that she also believes international standards should inform the court as to this — as to evolving question.

HUME: Should inform the court?

TURLEY: Should. And only three of them signed on to the Scalia decision that said, you know — Scalia and two others, that said we don’t believe this is an appropriate way to judge our own standards.

There is a creeping influence on the court in terms of international views of the United States. These justices travel a lot. They go to international conferences. And what they hear about almost without exception is juvenile executions and then the death penalty generally. But the United States does stand alone on juvenile executions.

But the question is, who is the relevant body to determine that? I happen to agree with the conclusion of this opinion. But that doesn’t mean that you agree with the methodology. The question is who should decide? Should it be these nine people?

HUME: It strikes me that I can see a lot of Americans saying oh, well. I mean OK, that’s not the worst thing. But the question is, is there a risk to a court when it reaches like this for authority from overseas law and so forth, and goes ahead on something like this, is there any danger for the court?

TURLEY: I think there is a risk. And I think it’s a mistake for liberals particularly to applaud the methodology here. Because this can cut both ways, when a court becomes un-tethered from legislators and from the political process.

HUME: And in its own earlier decisions.

TURLEY: Right. Then they can select. Here the court based its decision on studies that it selected, that it considered relevant, international views that it considered relevant. And when you become un- tethered to that degree, you can reach most any conclusion.

HUME: And the public senses that.

TURLEY: That’s right.

HUME: Jonathan, thank you. Always good to have you.

TURLEY: Thank you.

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