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OP-ED

Supreme Court race boils down to 2 court decisions

By Eric Fleischauer
DAILY Business Writer

eric@decaturdaily.com 340-2435

The June 6 primary for Republican nominees to the state Supreme Court is remarkably focused. The fighting comes down to issues raised in two cases. One, whether the U.S. Supreme Court exceeded its power in ruling that the execution of juveniles violates the U.S. Constitution. Two, whether the state Supreme Court was wrong to follow that decision.

In the melee that follows those decisions, a divided Republican Party must decide whether to run with Justice Tom Parker, who is seeking election to the post of chief justice, and with the three like-minded candidates running for associate justice seats.

The three on Parker's slate are Ben Hand, Alan Zeigler and Henry Fowler. Parker is hoping to unseat incumbent Chief Justice Drayton Nabers. The other three are seeking to unseat, respectively, incumbents Champ Lyons, Lyn Stuart and Tom Woodall.

A tale of 2 murders

The battle for control of the Alabama Supreme Court had its birth on Aug. 20, 1997, at 11 p.m.

It was then that Renaldo Adams, 17, raped and killed Missy Mills, a pregnant Montgomery County woman. There was no significant dispute on the facts, and the jury took 30 minutes to conclude Adams deserved the death penalty. The trial judge agreed and Adams appealed.

Rewind to September 1993.

Christopher Simmons, 17, after bragging he would do so, broke into the Missouri home of a near stranger, Shirley Crook. He wrapped her face and arms in duct tape, then drove her to a railroad trestle. He bound her feet and hands together with electrical wire and dropped her into the Meramec River, where she drowned.

As with Adams, the jury in Roper v. Simmons recommended the death penalty, a recommendation the trial court accepted. Simmons appealed to the Missouri Supreme Court. On appeal, the U.S. Supreme Court in March 2005 concluded execution of a defendant who committed a crime when 17 years old was unconstitutional.

The issue in Simmons, as with all death penalty cases, was whether the penalty violated the Eighth Amendment of the U.S. Constitution, a 1789 amendment that prohibits "cruel and unusual punishment." The prohibition applies to the states by virtue of the Fourteenth Amendment.

The Simmons ruling expanded the age-based Eighth Amendment protection from defendants under the age of 16 to defendants under the age of 18.

Any new interpretation raises the ire of those who advocate a strict interpretation of words that have gone unchanged for more than two centuries. The words are the same as in 1789 and the intent of the long-buried drafters cannot have changed. So why a new interpretation?

Near the beginning of the Simmons opinion, the U.S. Supreme Court broadcast its view on constitutional interpretation. The prohibition against cruel and unusual punishment, the court explained, must be interpreted with reference to "the evolving standards of decency that mark the progress of a maturing society to determine which punishments are so disproportionate as to be cruel and unusual."

The "evolving standards" language agitated strict constructionists, who believe that the Bill of Rights can "evolve" in only one way, through a constitutional referendum. How else could the U.S. Supreme Court determine that a "standard of decency" has evolved?

The Simmons court answered the question, but not in terms that endeared it to Parker. The court cited the following developments as evidence that ethical standards had evolved to the point that the execution of juveniles, previously constitutional, was "cruel and unusual" as applied to 16 and 17 year olds:

  • Scientific studies suggesting juveniles are more inclined to reckless behavior.
  • Recognition by most states that juveniles are sufficiently irresponsible that they should not be trusted to vote or drive.
  • Evidence that the prospect of execution is not a deterrent for juveniles.
  • Difficulties in determining whether a juvenile's conduct demonstrates "transient immaturity" or "irreparable corruption."

    These arguments may have grated on the sensibilities of strict constructionists, but it was the next rationale that started patriotic fireworks.

    It is appropriate, explained the U.S. Supreme Court, to refer "to the laws of other countries and to international authorities as instructive for its interpretation of the Eighth Amendment's prohibition of 'cruel and unusual punishments.' "

    The court went on to note that the United Nations Convention on the Rights of the Child, ratified by every country in the world "save for the United States and Somalia, contains an express prohibition on capital punishment for crimes committed by juveniles under 18."

    "The opinion of the world community," the court continued, provides "confirmation for our own conclusions."

    Justice Sandra Day O'Connor and three other justices dissented. O'Connor complained that an unelected U.S. Supreme Court had no business making a blanket prohibition that undermined the role of jurors and trial judges.

    Parker was not alone in his frustration at the Simmons ruling. Indeed, the Alabama attorney general filed a brief in the Simmons case — even though Alabama had nothing to do with it — arguing against constitutional reinterpretations that increase federal judicial constraints on state sovereignty.

    Most of the justices on the state Supreme Court have said they believe the Simmons case was wrongly decided. Notwithstanding that belief, the justices unanimously reversed Adams' death sentence. The sole rationale in the one-paragraph reversal was that the death-penalty sentence conflicted with the U.S. Supreme Court's decision in Simmons.

    Parker recused himself from the case because he had been involved in prosecuting Adams. A few days after the court reversed Adams, Parker wrote an op-ed piece published in The Birmingham News.

    In it, Parker said the U.S. Supreme Court's "liberal activist" justices "based their ruling ... on foreign law, including United Nations treaties."

    Parker went on to slam his colleagues for deferring to the U.S. Supreme Court on the issue.

    "The proper response to such blatant judicial tyranny," Parker wrote, "would have been for the Alabama Supreme Court to decline to follow Simmons in the Adams case."

    This approach was especially appropriate, in Parker's analysis, because the U.S. Supreme Court was in flux, and its 5-4 ruling in Simmons might change. At least two justices were likely to be replaced, possibly before an appeal of the Adams case ended up in Washington.

    Stuart, in a recent interview, was succinct in her rejection of Parker's approach.

    "I strongly disagree with (the Simmons) decision. Just because I disagree with the decision does not mean I can ignore it," Stuart said.

    Parties to cases may challenge U.S. Supreme Court decisions, she said, but courts should not.

    "It's not the role of our court to be an advocate. Parties can do that through appeals; we apply the law to the facts," Stuart said.

    Any other result, Stuart said, would be chaotic. Our judicial system is built around the assumption that lower courts will abide by decisions of higher courts. A lower court may properly express its distaste for the controlling opinion, but still must apply it.

    Stated differently, the Adams case should make it to the U.S. Supreme Court docket not because a state court refused to abide by a federal court's interpretation of the federal constitution, but through an appeal by the Alabama prosecutor dissatisfied with the sentencing decision.

    Religious and classical, or strict-constructionist, conservatives generally agree that the U.S. Supreme Court exceeded its authority when it reinterpreted the Eighth Amendment in Simmons. They part ways, however, when evaluating the state Supreme Court's deference to Simmons.

    Who is right? Stay tuned. Voters get to add their voices to the commotion June 6. DAILY business writer Eric Fleischauer is also a lawyer.

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