How'd ya like to have this peer on your jury?
A conspiracy of one

The Winning Brief

At issue in Roper v. Simmons is whether the Eighth Amendment prevents the government from executing people for crimes they committed while 16 or 17 years old.  Thus, the Court must determine whether executing people for crimes they committed while they are young violate "evolving standards of decency."  Some argue that a 16 or 17 year old does not fully appreciate his acts, and as such, should not be subject to the ultimate punishment.  Orin Kerr writes: "One of the interesting questions potentially implicated by the case is whether people who are 16 and 17 tend to make less mature judgments than adults."

My first, emotional response was, "Of course it's wrong to execute people for crimes they committed at such a young age.  Kids are different."  But my emotions are not relevant.  My feelings about the death penalty in general are not relevant.  Like it or not, the Eighth Amendment does not prohibit the death penalty.

The only relevant issue is whether, as a legal matter, the Eighth Amendment prohibits the executions of men and women who killed while young.  Applying the legal standard of "decency" (yes, folks, that is what constitutes a legal standard before the Supreme Court) is trickier, but I still concluded such executions were wrong.  Until I read this brief.

Alabama's Solictor General (and friend of Feddie) puts forth the most compelling argument for giving juries the ability to sentence young people to death that I have ever seen.  Rather than telling me that the Constitution allows a jury to sentence someone to death for acts committed while young, he shows me that these "children" knew quite well what they were doing.

General Newsom tells the story of six murders.  These murders were committed by 16 and 17 year old men.  These murders show that although youngsters may not - as a class - appreciate their acts; evil is often blooms fully in young people.  The story of Timothy Davis is particularly illustrative:

Timothy Davis -- Age 17. Sixty-eight year old Avis Alford was working alone in her grocery store in Coosa County, Alabama, when Timothy Davis (17) entered. Davis proceeded to rob, sodomize, and brutally murder Mrs. Alford -- stabbing her 17 times in the back with a common steak knife.

Shortly after police discovered Alford's nude body, Davis, along with his wife and mother, came to the scene and told police that he had earlier found Mrs. Alford's body and that he had panicked and fled. He further said that he had gotten blood on his clothing from lifting her body and had returned home to change before making a report of the murder. Finally, Davis stated that he had seen two black men leaving the area after he discovered the body; when pressed, Davis could not give a description of either one.

Human sperm was recovered from Mrs. Alford's rectum. A stain composed of the combination of human sperm, fecal matter, and tissue from the inside of the rectum, was recovered from the crotch area of the underwear Davis had been wearing.  Blood stains matching Mrs. Alford's blood type were also found on the inside of Davis's jeans and splattered across his motorcycle helmet. Davis later admitted the crime to a fellow inmate while awaiting trial.

General Newsom's brief is so brilliant because it is so trusting.  He trusts me to realize for myself why Davis is evil.  Not only did Davis rape and kill someone, but he appealed to prejudice by blaming two black men.  Instead of telling me that "Davis is a bad man," he shows me.  He lets the fact speak for themselves.

Newsom's brief might also persuade one of the swing votes, Justice Kennedy.  Lyle Dennison reported:

A spare, 14-page legal brief took on more importance Wednesday as the Supreme Court spent an hour exploring the constitutionality of executing juvenile murderers. The brief, submitted on behalf of six states, appeared to have a significant influence on Justice Anthony Kennedy, whose vote could turn out to be crucial when the Court decides the issue. The document seeks to make a single point: 16 or 17 year olds are fully capable of committing heinous murders, and doing so with full awareness of the moral choice they made.

If Justice Kennedy (or Justice O'Connor) finds that the Eighth Amendment does not prohibit executing people for crimes committed while young, I would not only understand him, but I would agree.  I changed my mind.  And I did so because of one man's writing.

UPDATE:  Douglas Berman at Sentencing Law & Policy dicusses the brief's effectiveness:

Though the facts of the murder cases in the Alabama brief are compelling, what really makes the brief effective is its framing of the issue before the Supreme Court in terms of individual cases. Such a framing is not inappropriate, since the Supreme Court is being asked to preclude the application of the death penalty in any individual case involving a juvenile offender. But, of course, the issue before the Court in Roper could be (and perhaps should be) framed in more systemic terms.

Please read Prof. Berman's full post here for more details.