Thursday, February 13, 2014

Bad Argument Linking Belgian Euthanasia With US Death Penalty

Eugene Kontorovich (Northwestern Law) has penned an egregious argument over at the Volokh Conspiracy. Go read it, if you're entertained by egregious arguments. In sum, it goes like this:

In Roper v. Simmons (2005) the Supreme Court found unconstitutional the execution of persons who had committed their crimes while under 18. In doing so, they "caved in to pressure" from Europeans who opposed the death penalty. Indeed, the court "cited the European position as support for its conclusion." Part of the court's reasoning was that juveniles were "too immature to understand the consequences of their decisions, or the meaning of life and death." But now Belgium is permitting juveniles to decide to have themselves euthanized. This proves that Roper misread the European's belief system. It wasn't one of "paternalistic concern for youth."
"Rather [Kontorovich continues], a system that permits the euthanasia of innocent 12 year-olds but not the punishment of guilty 17-year-olds is one that exalts autonomy without culpability....So it comes out that the juveniles cannot really make accountable decisions when it comes to killing people, unless it is themselves. Or to put it differently, Belgium will not hold children responsible when they hurt others, but gives them free license to hurt themselves."
All of which goes to show you that the US Supreme Court shouldn't pay attention to what other countries do, because they're different from us. And because the Supreme Court misunderstood what other countries stand for, Roper should be overruled.

I feel a bit unclean picking up this rotting fish of an argument, so I'll summarize its major faults quickly:

1)   Roper mentioned, but was not based on, the broad consensus of other countries that juveniles shouldn't be executed. "The opinion of the world community," wrote the court, "while not controlling our outcome, does provide respected and significant confirmation for our own conclusions."
2)  The Roper majority did not get the idea that juveniles were immature from Europe, but from developments in the Supreme Court's own death penalty jurisprudence and that of many states, which were in turn based on ample expert psychological testimony about juvenile judgment. Read the opinion and see. 
3)  A system that lacks capital punishment for juveniles is not, on that account, a system that does not permit "the punishment of guilty 17-year-olds." It is not actually constitutive of the idea of "holding someone responsible when they hurt others" that you must kill them.
3) The Belgian law doesn't "permit the euthanasia of innocent 12-year-olds" unless they are terminally ill and in untreatable pain, and unless they are deemed competent to make the decision by a physician. And their parents have to agree! So Belgium does not give children "free license to hurt themselves."

Sorry, Eugene. The fact that Belgians now approve euthanasia for terminally-ill, competent, suffering children who request it (and who get their parents' permission) doesn't actually give Americans a reason to execute juvenile offenders. I'm baffled that anyone thought that it did.

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