Stanford v. Kentucky Page 16

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Media for Stanford v. Kentucky

Audio Transcription for Oral Argument - March 27, 1989 in Stanford v. Kentucky

Nancy A Mckerrow:

And I think the Court should consider those statutes for that purpose as how they indicate society's attitudes towards children.

Antonin Scalia:

Once again, as far as rights or responsibilities are concerned, you are not arguing that society wouldn't or that a state here could not send a child to jail for life, a 16-year-old to jail for life?

Nancy A Mckerrow:

No, Your Honor, I'm not.

Antonin Scalia:

So the child is responsible for the criminal act?

Nancy A Mckerrow:

Yes, Your Honor.

Antonin Scalia:

So all you are arguing here is you can do it for life but you can't execute, and that's seems to me to be, although you disclaim the argument that this is just a sympathy factor, it seems to me that that's exactly what the case is, because you hold the child responsible.

You are willing to send the child to jail for life, which you would not do an insane person.

For insane people we don't say... you just can't execute them if the person is insane at the time of the crime.

It's a defense in virtually every state, isn't it?

Nancy A Mckerrow:

Yes, Your Honor.

Antonin Scalia:

That's responsibility.

But you're not talking here about responsibility, it seems to me.

Nancy A Mckerrow:

No, Your Honor, we're not talking about the fact that a 16-year-old child cannot act with criminal responsibility.

Petitioner's argument is that no 16-year-old can act with the level of moral culpability which should be required by a society before that person is executed, and that we require the highest level of moral culpability and responsibility before we would execute a person for a crime committed.

William H. Rehnquist:

I think Justice Kennedy had a question for you.

You indicated that the legislature was waiting for this Court's guidance.

Nancy A Mckerrow:

Yes, Your Honor.

Anthony M. Kennedy:

But your whole argument has been that we're supposed to take our guidance from the legislature.

Nancy A Mckerrow:

Yes, Your Honor.

It goes to the ability to use the legislature as some sort of a factor.

It goes back to Justice O'Connor's concurring opinion in Thompson that we can wait for the legislature to act on this, but it's petitioner's contention that what occurred in Missouri this year is that this is the sort of thing that legislators are waiting to see whether they can operate within.

They know that they are constrained by the Constitution and that it's this Court's responsibility to inform them of what the Constitution requires, and they are waiting for that.

Anthony M. Kennedy:

I see some circularity there.

William H. Rehnquist:

Thank you, Ms. McKerrow.

The case is submitted.