LOUISVILLE, Ky. — The Kentucky Supreme Court will hear oral arguments on Thursday over whether the death penalty should be an option for those younger than 21 in the state (it is already banned for those under 18 nationwide). The death penalty is a contentious issue across the United States; some argue we shouldn’t have it at all, and even those who support it disagree on how and when to use it.
The Constitution was written a long time ago, and it uses words and phrases we don’t often hear today. A lot of it is pretty vague, too. As it turns out, its vagueness is both its genius and the source of many of our modern legal dilemmas.
“The Constitution is different from other laws,” said Douglas Linder, a constitutional law professor with the University of Missouri Kansas City. “The Constitution was meant to be a document that would be used for generations to come; and that means being a little less specific, a little more vague in the language that’s used.”
In a discussion over the death penalty, we turn to the Eighth Amendment. It reads:
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflected.
How much cash is too steep to demand for bail, though? Just how painful must a punishment be before we decide it’s “cruel and unusual?” The language is vague, and the Founders knew so as the wrote it.
“There was a congressman from Massachusetts,” Linder explained. “[He] said, 'Hey, wait a minute, this is awfully vague. Maybe some judge in the future is going to say we can't cut people's ears off or we can't whip people, even though we might need it, right?’ Even thought he made that objection, the Congress went ahead and left the language as it was which a lot of people interpret to suggest that they wanted the language to be vague. That they wanted it to change, evolve over time.”
Yes, cutting people’s ears off as a punishment was a real thing we did. But, we phased it out. The Supreme Court has deemed this process our “evolving standards of decency.” For example, in 1992 it officially said that prison guards can't beat prisoners. In 2005, the Court held that people couldn't be put to death for crimes they committed before they were 18 years old, ruling our "evolving standards of decency" meant that doing so would now be cruel and unusual.
A similar question now sits before the Kentucky Supreme Court. Recent developments in science have shown that brain development doesn't end until a person is in his or her 20s, and therefore may lack full control over his or her impulses. Some argue that our "evolving standards of decency" should therefore ban the death penalty for anyone under 21. This, however, would be new: of the 29 states that still have the death penalty, none currently have a ban on this age group.
“Your case in Kentucky sort of suggests where a lot of these death penalty cases are going,” Linder said. “The Supreme Court has shown a reluctance to abolish the death penalty altogether, but it's taken a way the death penalty as a possibility for mentally incompetent people, for minors, in cases other than murder... so it's kind of an interesting question, I'll be interested to see how it comes out there.”
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