Oddly, people sometimes need to be reminded that capital punishment is a pretty gruesome act, and maybe it should be more gruesome. “What do you think of the Supreme Court decision outlawing capital punishment for those who committed murder when not yet 18?” The difficulty in answering that question with any enthusiasm is that to take a negative view of the Supreme Court’s decision risks giving the impression that one enjoys hanging people whose crime was committed when very young.

But of course other analyses were sought by those who asked the question. They focused on two points especially. One was the strange invocation by the majority (Justice Kennedy) of practices on capital punishment by other nations. A decent respect for the opinion of mankind is different from subordination of one’s own policies because they are different from those of others, even of mankind’s. The Declaration of Independence promulgated the first self-governed state in the world since Athens; so we were early on encouraged to reach our own conclusions in matters of public policy.

The thinking underlying the democratic process has to do with consensus – in this case, an American consensus. To introduce, for critical consideration, the judgment of non-Americans is to vitiate the sovereignty of American political judgments. These, by the way, alter on capital punishment in both directions, no doubt reflecting the public mood. In 1917, Missouri became the 13th state to abolish capital punishment; but seven of these states, soon after, reinstated the death sentence. Are we to suppose that if a few European countries do as much in the years ahead, the Supreme Court will reauthorize the execution of people who, as youths, committed murder?

The second dereliction of the court was, of course, removing the whole question of what is constitutional from the deliberation of the voters. The court overruled not only the 19 states that continued to authorize such punishment, but also its own decision in 1989, when it authorized the death penalty for minors.

The proposition can be argued that that which is cruel and unusual reflects public sentiment. In 1885, we have been reminded, James Arcene was hanged for murders he committed when he was 10 years old. One likes to believe that murders by 10-year-olds are unusual, but not for that reason designated as constitutionally unusual as regards the death sentence.

What the majority of the Supreme Court was up to (by the barest majority, 5-4) was social activism. The planted axiom in Roper v. Simmons was that American voters do not mature ethically as quickly as Supreme Court justices, and therefore judicial epiphanies need to be enunciated, late-born thoughts of the Framers.

A criticism of unusual character was made during the discussions of capital punishment. One critic, writing in a British paper, argued that the search for utterly painless punishment contradicted the purpose of punishment. One didn’t gather from the essayist that he was arguing for the restoration of torture. But he argued with some plausibility that pain is a desirable feature of punishment.

There is, obviously, the psychological pain of confronting death, but the passage from life to death of a murderer does not reasonably impose a mission to devise the ultimate chloroform. We have not had a public execution in the United States since Rainey Bethea was hanged in Kentucky in 1936 for murdering an elderly woman. The endorsement of public executions has been pretty much abandoned, in the general search for the insulation from unpleasant activity, other than sexual depravity.

But there is no consensus, among penologists, on whether crime deterrence would be advanced by exposing the public to the act of execution. There are the abolitionists who argue in favor of televised executions on the grounds that such exposure would magnify the opposition to a bestial practice. That might be so, probably is so. But that does not mean that such executions wouldn’t simultaneously augment deterrence.

Professor Ernest van den Haag, the late, learned advocate of capital punishment, rested his case on the single point, namely that punishment of that order affirms the full extent of the community’s respect for life: take a life, forfeit yours.

When the British Parliament voted to outlaw the death sentence for murder in 1969, this was done athwart the absolutely resolute judgment of about 70% of the public, who, then and today, believe that murderers should hang. Well, maybe not hang, but be injected with a liquid which, however pleasant, would nevertheless be lethal. The British Parliament sometimes acts like the U.S. Supreme Court, but at least the Brits have a chance to vote for members of Parliament.