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THOMAS OLIPHANT | WEB EXCLUSIVE

On death penalty, Scalia's consistency shines

WASHINGTON --FEELING FRISKY, I found myself this week respecting Antonin Scalia's dissenting position on whether the government should kill people for what they did as kids.

And I found myself scratching my head over the tiny, five-justice majority's view on why that's now wrong.

Scalia has consistency and clarity on his side. The majority failed on both counts, unable to deal with the basic question of whether the death penalty itself or its application to the acts of adolescents is inherently cruel. Instead, it used to a great extent the other leg in the Eighth Amendment's standard, that this kind of killing is unusual. It was the flip side of a famously poor argument: Everybody does it. The best the majority could muster was the observation that virtually nobody does it anymore.

What's still lost in all this is a position I've long believed can unite left and right - that the death penalty is a government program and as such is by definition arbitrary, capricious, and illogical in its application. It's bad enough that the government does stuff like regulate dangerous drugs to serve the interests of the people who manufacture them as opposed to the people who use them. It's intolerable if this kind of Catch-22 madness is the daily routine in killing by government.

Scalia is not in favor of killing adolescent killers — or if he is that has nothing to do with his views as a Supreme Court justice about the issue the court decided this week. Scalia is conservative, as in very, very conservative. His dissent cogently attacks the majority's reliance on its own notions of what is cruel or unusual as well as its reliance on the evolving trend in the rest of the world.

As a conservative, Scalia believes it is more important to uphold the tradition that remains in most states in this country, what he calls ''the centuries-old American practice — a practice still engaged in by a large majority of the relevant states — of letting a jury of 12 citizens decide whether in the particular case youth should be the basis for withholding the death penalty.''

He might have added that behind that tradition are the decisions of elected state legislatures on whether to have whatever kind of death penalty they choose, including none, subject to federal constitutional standards.

I don't agree with him, but I get where he is coming from. Moreover, I understand his position about the propriety of taking global survey to inform a US standard. He did something similar in dissenting from other decisions that banned the death penalty for people who are ''retarded.''

The majority, for whom another conservative, Anthony Kennedy, wrote mixed a general view of adolescence with its view of trends in the world and in the United States.

It is, I guess, fine to argue as Kennedy did that the ability to understand consequences, impulses, peer pressure, and character itself are all a function of age and that adolescents cannot be lumped with ''mature'' people as equally culpable. The view, however, is by definition subjective and arbitrary when it comes to the deadly and absurd business of choosing a cutoff age. Arguments aside, the new standard is that the state can kill

you for something you did after your 18th birthday, but you live if you committed a heinous murder at 17 years, 11 months, 29 days. I'm just one person but I don't recall changing that much in that interval.

Kennedy is compelling in marshaling the facts about current trends — the fact, for example, that over the last 15 years all seven of the countries that had carried out executions for juvenile crimes have since stopped doing it. The implication, however, is troubling — that basic principles in our law are affected by recent decisions in Congo, China, Nigeria, Yemen, Saudi Arabia, Pakistan, and Iran.

More relevant is the situation here. By the Kennedy opinion's count, 18 states that have the death penalty but don't allow it for juvenile crime should be added to the 12 that have no death penalty to constitute a clear majority. This produced a hair-splitting dissent from Scalia and Sandra Day O'Connor that the 12 states are different and a sharp barb from Scalia that this is like counting the Amish in a consumer poll on electric cars.

What is missing in the Kennedy opinion, however, is an understanding that the majority was simply adding a new absurdity to a bureaucratic maze that is already absurd. Do one crime in one state and you get death; do the same crime in another state and you get life; find a piece of exculpatory evidence after a certain date and it doesn't matter if you're not guilty;

kill a white person and your chances of death go way up. Now, the accident of a birthday is added to the pile, along with an earlier decision that made life or death subject to an IQ test cutoff.

When the death penalty was briefly unconstitutional in the 1970s, a different Supreme Court was both right and wrong in its decision. It was right to show that by studying the way the death penalty was administered it was clear that it was inherently a denial of equal protection and due process.

It was wrong, however, to decide that it was possible for political human beings to fix that fatal flaw.

Thomas Oliphant's e-mail address is oliphant@globe.com

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