I think the Supreme Court’s decision holding that the death penalty may not be imposed on killers who were 16 or 17 at the time of their crimes was unsound, for the reasons that Orin has noted here, and that Justice Scalia noted in dissent. I’m not sure what I think of the execution of such killers as a policy matter, but I think Justice Scalia is right that this is not unconstitutional.
Nonetheless, I’m not persuaded by the link that some readers have drawn between this and a point in yesterday’s post about the killings of Muslim women by their families:
In many cases, fathers — and sometimes even mothers — single out their youngest son to do the killing, Boehmecke said, “because they know minors will get lighter sentences from German judges.” . . . Currently, six boys are serving time in Berlin’s juvenile prison for honor killings.
I think many would-be killers (and those who influence them) may be swayed by the possibility of relatively light sentences, especially if they are just several years (which is my tentative sense from the paragraph above). But I think few would-be killers, especially teenagers, would think “I won’t commit this crime if there’s a small chance I’ll get the death penalty; but I will do it if all it means is that I’ll get life without parole.” The marginal difference in deterrent, I suspect, is pretty modest there — whereas the marginal difference between several years in prison and many more years, which it sounds like is the situation in Germany, would be quite substantial.
This is my intuitive sense; I haven’t read the studies, about which I hear conflicting things. Nonetheless, it’s a pretty strong intuition. I don’t think we’re going to have many more honor killings (or other killings) by 17-year-olds as a result of this decision.
At the same time, I do agree on one point: I don’t think the U.S. Constitution should be interpreted in light of the moral judgments of Germans or Englishmen (or perhaps more precisely the members of German or English legal elites), who may have very different cultural and moral assumptions about the propriety of punishment. That 20 American states endorse something strikes me as more significant for interpreting our Constitution (if present views are to be considered) than 50 to 100 foreign countries’ endorsing something. (I say 50 to 100 rather than the full complement of 200+ because 50 to 100 is the upper limit of the number of countries that are democratic enough that we should see their “views” as anything other than the political judgments of the strongmen or cliques that run them.)
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