Juveniles and the death penalty

Justice Kennedy, writing for the majority, acknowledged the weight of international opinion against juvenile death penalty, which rests in large part on the understanding that the instability and emotional imbalance of young people are often a factor in the crime. ‘‘The age of 18 is the point where society draws the line for many reasons between childhood and adulthood. It is the age at which the line for death eligibility ought to rest. Neither retribution nor deterrence provides adequate justification for imposing the death penalty on juvenile offenders.’’

In his characteristic angry dissent, Justice Scalia chastised the judgement, which he said was based on ‘‘the flimsiest of grounds’’. He ruled that the appropriateness of capital punishment should be determined by states, not by ‘‘the subjective views of five members of this court and like-minded foreigners’’. He bemoaned that the Court had proclaimed itself the sole arbiter of the nation’s moral standards and deprived the states of their powers.

Chief Justice Rehnquist and Justice Clarence Thomas joined Scalia in upholding the executions. Justice Sandra Day O’Connor, in a separate dissent, held that a blanket rule against juvenile executions was misguided and a case-by-case determination of a young offender’s maturity is the better approach. She reasoned that chronological age is not an unfailing measure of psychological development, and that common experience indicates that many 17-year-olds are more mature than the average young adult.

In 1988 the US Supreme Court had outlawed executions for offenders who had committed murders while still under the age of 16. Three years ago the Court barred execution of the mentally retarded. The present judgement is in line with the recent US judicial trend of narrowing the field in which capital punishment can be imposed and pushing towards its ultimate abolition. As a result of the judgement, death sentences imposed on 72 juveniles for the commission of murder stand wiped out.

There have been different reactions to the judgment. Former president Jimmy Carter welcomed it, and said: ‘‘This ruling acknowledges the profound inconsistency in prohibiting those under 18 years of age from voting, serving in the military or buying cigarettes, while allowing them to be sentenced to the ultimate punishment.’’

On the other hand the judgement has been severely criticised for putting all juvenile criminals into one category and granting a blanket exemption rather than proceeding on a case-by-case basis. Critics argue that there is striking evidence that criminal gangs in America’s cities are already employing 15-, 16-, 17-year-old assassins to commit the gang’s murders in those states that don’t execute juveniles. What is overlooked by the critics is that although all 72 persons on death row for murders they had committed when they were 16 or 17 are spared their lives, they will instead receive the harshest punishment available, namely spending the rest of their lives in prison.

Hats off to the US judiciary which by its progressive ruling has redeemed the image of its country. In our country Section 16 of the Juvenile Justice Act, 2000, prohibits inter alia imposition of death sentence on a person who has not completed 18 years of age.

Suffering fools

There are people who disdainfully proclaim that they cannot suffer fools gladly. Regretfully I too at times suffer from this failing, especially during conferences in my chambers when some advocates make irrelevant arguments or go on repeating the points they have already made and which I have understood. This weakness is also found in some judges who on account of the rambling, incoherent arguments by lawyers get impatient and indicate by the tone of their observations that they cannot bear with fools patiently. Lord George Hamilton in a letter written in 1903 to Lord Carson advised Carson ‘‘to try and suffer fools more gladly; they constitute the majority of mankind’’. A sound but difficult prescription.