Justice Scalia and Vulnerable Youth

During this period of reflection on Justice Scalia, most news stories just skim the surface of his legal thinking, opting to just describe him as a conservative, brilliant justice and citing a few of his opinions. For me as a child advocate, there was one case, which represents his quintessential legal philosophy. (In full disclosure, I worked on the amicus brief of Thompson v. Oklahoma for a consortium of mental health organizations.)

In 1983 15-year-old Wayne Thompson, along with three adult men killed Wayne’s brother-in-law, because he had been physically abusing Wayne’s sister. In 1987, one year after Scalia arrived on the Supreme Court, the majority of his fellow justices found that the ‘cruel and unusual punishment’ prohibition of the Eighth Amendment prohibited the execution of a person who was under 16 years of age at the time of his or her offense. The Court reversed the Oklahoma Supreme Court. It based its decision on the principle that the “evolving standards of decency that mark the progress of a maturing society,” rendered the death penalty for those under 16 cruel and unusual punishment. Justice Scalia vehemently disagreed with this basic analysis of the Eighth Amendment. He excoriated his fellow justices for mandating an absolute prohibition on the death penalty for those under 16.

Consistent with his theory of originalism, his dissent was grounded in 18th and 19th century perceptions of youth. In relevant part he wrote, “The age at which juveniles could be subjected to capital punishment was explicitly addressed in Blackstone’s Commentaries on the Laws of England, published in 1769 and widely accepted at the time the Eighth Amendment was adopted as an accurate description of the common law. According to Blackstone, not only was 15 above the age at which capital punishment could theoretically be imposed; it was even above the age (14) up to which there was a rebuttable presumption of incapacity to commit a capital felony. The historical practice in this country conformed with the common law understanding that 15-year-olds were not categorically immune from commission of capital crimes. One scholar has documented 22 executions, between 1642 and 1899, for crimes committed under the age of 16. “

Thus was the cemented logic of Justice Scalia. Scalia was unmoved by the studies offered to the Thompson court that the overwhelming majority of young teens on death row were victims of horrific child abuse, family dysfunction and had significant mental health problems – issues which were irrelevant in the 18th and 19th century – and even most of the 20th. Not surprisingly in 2005 when the Supreme Court finally declared the death penalty unconstitutional for all persons under 18 in Roper v. Simmons, Scalia also dissented. Luckily, the majorities in Thompson and Roper understood that the majesty and beauty of our Constitution is that it is an evolving document that should reflect the moral compass of our nation.