Old enough to kill, too young to pay

By Thomas Jipping

The Supreme Court has, unintentionally, told us that in the upcoming election, freedom itself is at stake and that every vote counts.

In January 1981, 17-year-old Kevin Stanford robbed a gas station, repeatedly raped and sodomized the female attendant, and later shot her point-blank in the face and in the back of the head. For his effort, Stanford got cigarettes, two gallons of fuel, and a little cash. He said of the crime: “I had to shoot her, [she] lived next door to me and she would recognize me.” Then he laughed.

Clearly guilty of a crime that deserved death, Stanford still had hope in 1989 when he asked the Supreme Court to ban executing teen murderers. The year before, in Thompson v. Oklahoma, the court voted 5-3 that, no matter how mature the killer or heinous the crime, “evolving standards of decency” prohibited executing anyone who was under 16 at the time they killed.

Across America, Justice John Paul Stevens wrote, 15- or 16-year-olds may not serve on a jury, buy porn, or vote at all and may not drive a car, marry, or gamble without parental consent. These kids are “not quite ready to take on the fully rational and considered task of shaping his or her own life.”

Kevin Stanford certainly hoped the court’s standards of decency were higher than his. Though he had ended his victim’s ability to shape her own life, he still wanted the Court to wrap its loving jurisprudential arms around him. The court, however, voted 5-4 in Stanford’s case against banning execution of all minors. Justice William Brennan’s dissent, joined by Justice Stevens, opened with the call of the judicial activist: “I believe that to take the life of a person as punishment for a crime committed when below the age of 18 is cruel and unusual and hence is prohibited by the Eighth Amendment.” The judge believes it, so the Constitution requires it. So let it be written, so let it be done.

Kevin Stanford is on death row with a lot of time on his hands and his patience paid off. In February 2002, Justice Stevens wrote the opinion for the Supreme Court’s 6-3 decision in Atkins v. Virginia to ban executing even mildly retarded murderers. The word swept death rows across the land: The standards of decency were once again on the move!

Kevin Stanford rolled the dice again but, on Oct. 21, the Court voted 5-4 not to revisit his case. Justice Stevens disagreed, quoting from the dissent he had joined in Stanford’s previous case. In “a host” of ways, he wrote, juveniles lack the maturity and responsibility necessary for “participation in the rights and duties of modern life.”

Nothing on Halloween should chill you more than Supreme Court justices claiming the power to regulate our culture using nothing but their own “evolving standards of decency.” At stake in the upcoming election is a Senate willing to confirm President Bush’s judicial nominees, who know they will only be judges rather than members of the Cultural Regulatory Commission. To retain any freedom, we the people must be able to govern ourselves, at least a little bit. We have only as much power to govern ourselves, however, as judges give us.

To support his argument that 17-year-old killers are immature, Justice Stevens quoted the Supreme Court’s 1979 decision in Bellotti v. Baird that minors lack “experience, perspective, and judgment.” In Bellotti, the court struck down a statute requiring parental consent before minors can get an abortion. A 17-year-old is not mature enough to kill an adult, but a 14-year-old is mature enough to kill a baby. That standard of decency has mutated, not evolved.

In 1983, Justice Stevens voted to strike down a law requiring parental consent for girls younger than 15 to get an abortion. Five years later, he voted to ban executing a 15-year-old murderer because she is not up to the task of “shaping … her own life.” In 1989, Justice Stevens voted to strike down a law requiring only parental notification before minors can get an abortion. That same year, in Kevin Stanford’s case, he voted to ban executing any teen murderer because they are too immature to fully participate “in the rights and duties of modern life.”

This is the bizarre and arbitrary face of what Justice Antonin Scalia once called “power-judging.” Activists like Justice Stevens, I suppose, are consistent in saying we should go easy on all those who kill the innocent, either the preborn through abortion or adults through a gunshot to the face. But if kids are too immature to make life-and-death decisions while robbing a gas station and sodomizing the attendant, they are too immature to make such decisions in an abortion mill.

Only the people may evolve standards of decency and enact legislation reflecting those standards. No judge has the power to substitute his evolved standards for ours. At stake in this election is whether we the people, or they the judges, will run the country and define the culture. As the vote in Kevin Stanford’s latest appeal shows, we are one vote away.