June 29, 2018
When U.S. Supreme Court Justice Anthony M. Kennedy announced his retirement there was a mix of nostalgia, dismay and alarm. Kennedy is 81-years-old and has been a judge for 43 years — 30 on the Supreme Court. It would be a bit disingenuous to suggest his announcement was a shock.
My law career began the year Kennedy was confirmed. He came as an afterthought to the beleaguered conservative Robert Bork. President Ronald Reagan nominated Bork to the Supreme Court, but he failed to be confirmed following a raucous and bitter battle in the U.S. Senate.
Kennedy’s record on the Supreme Court has demonstrated that the struggle to keep Robert Bork off the court was worth the effort. Kennedy has been a moderate voice on the court during some turbulent times, thus the dismay at his departure.
The alarm is for good reason. President Donald Trump will have the opportunity to nominate his second Supreme Court justice. With the court evenly divided and the voice of moderation leaving, President Trump can use his acknowledged litmus test for a new justice — overrule Roe v. Wade.
Although America is facing uncertain times it is worthwhile to reflect on the impact that Kennedy has had on American jurisprudence. Certainly, there are his swing votes on same-sex marriage, gun control and campaign finance, but I believe Kennedy’s most impactful decisions grew out of the criminal justice system.
In 2005, in a case known as Roper v. Simmons, Kennedy was the deciding vote in abolishing the death penalty for juvenile offenders. Kennedy wrote the majority opinion and went beyond merely writing that imposing the death penalty on juveniles was cruel and unusual punishment.
Kennedy wrote in Roper that juveniles are cognitively immature and therefore less culpable. The brain development argument sent the issue of juvenile punishment in a whole new direction.
The juvenile criminal court system is distinctly different from the adult criminal court system. Adult court is about retribution and incapacitation. The juvenile system is not punitive. The focus has always been on rehabilitation and is oriented toward the treatment of young offenders.
Kennedy wrote in Roper, “It is difficult even for expert psychologists to differentiate between the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption.”
When Roper was argued, death penalty opponents floated the idea that life without parole was an appropriate alternative to the death penalty. However, Kennedy’s brain development argument lends itself to arguing that life without parole is inappropriate for any juvenile offender regardless of offense.
In 2010, Kennedy was once again the swing-vote in a 5-4 decision out of Florida banning life in prison for juveniles convicted of non-homicide offenses. In Roper, Kennedy wrote that juveniles have a “lack of maturity and an underdeveloped sense of responsibility”; they “are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure.”
In the Florida case, Kennedy wrote, “No recent data provide reason to reconsider the Court’s observations in Roper about the nature of juveniles. ... developments in psychology and brain science continue to show fundamental differences between juvenile and adult minds.”
In 2012, the high court took Kennedy’s reasoning a step further. The court ruled that a mandatory sentence of life in prison without the possibility of parole imposed upon a juvenile violated the Eighth Amendment. Kennedy’s legacy lies in infusing dignity into the criminal justice system as it relates to juveniles. Thirteen years before Kennedy’s opinion in Roper the Supreme Court had upheld the execution of juveniles 16 years of age and older.
Today, 13 years after Roper — chiefly through the reasoning of Justice Kennedy — teenagers are no longer subject to the death penalty, they are much less likely to face life in prison and now, more than ever, their age and mental acuity are factors to consider at the time of sentencing.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner’s Toll, 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.
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