by Sam Griffin, Jr.
Editor and Publisher
The Post-Searchlight
March 04, 2005


In a 5-4 decision this week, the U.S. Supreme Court overturned state
laws that allow death penalties for criminals who commit their
crimes before reaching the age of 18. In the majority opinion,
Justice Anthony Kennedy referred to national opinion, international
consensus, the laws of other nations and comparisons with statutory
age restrictions regulating military service, consumption of
alcohol, issuance of drivers licenses and other irrelevant factors
in arbitrarily determining that it is cruel and unusual punishment
to execute criminals who were 16- or 17-years-old when their crimes
were committed. Kennedy asserts that the court was compelled to
establish a maturity threshold age beneath which criminals may be
presumed to be not responsible for their actions.

The first response that comes to mind is that of the Dickens
character in Oliver Twist: If the law supposes that, said Mr.
Bumble, the law is a assa idiot. But the lawthe
Constitutiondoes not suppose that. There is nothing in the law that
requires the court to create any such arbitrary thresholdand none
of the analogies to which the court majority points are comparable
to the age at which an individual should reasonably be presumed
incapable of understanding the awful impact of kidnapping,
torturing, mutilating, raping or murdering another human being.

The interests of law, mercy and justiceand certainly those of
victimsare not helped by activist judges who base decisions on
polls and personal opinions.

An old theologian explained the doctrinal levels of various
denominations: The rock-hard, puritanical fundamentalists invoke a
stern, God says ..., as authority for their beliefs, decisions and
dogma; the evolved, reasoned, middle-of-the-roaders submit a
scholarly and milder, The Bible says ..., about their religion;
and the totally enlightened new-agers suggest, It seems to me ...

In a jurisprudential analogy, the courts majority opinion fell
squarely into that last category. Judicial activism instead of
Constitutional process is alive and well.