It seemed too bizarre to be anything but apocryphal, but, hey, I heard it on NPR: William Poole, a high school junior from Kentucky, was taken into custody and charged with threatening to commit second-degree-felony terrorism for writing a story about a horde of zombies who wreak havoc in a school. It seems the boy’s grandparents had been reading his journal, found a story he’d been writing for English class and promptly turned him in. According to a police detective, “Anytime you make any threat or possess matter involving a school or function, it’s a felony in the state of Kentucky.” Based on that kind of reasoning, a judge raised Poole’s bond from $1,000 to $5,000 after prosecutors requested it, citing the seriousness of the charge.
I can’t imagine what was going on in the hearts and minds of Poole’s grandparents–are they the sort who would burn copies of Harry Potter? Do they harbor some religiously based objection to zombies, akin to witchcraft? How great must be their fear, and how little their love! But however subjective or obscure the motives of the grandparents, it does seem to me that the detective and prosecutor are the kind of strict textualists upon whom the “war on terror” has showered foolish amounts of power. “My story is based on fiction,” said Poole; but in Clark County, Kentucky, the law is the word. Last heard, he was dispatched to jail to await mercy and a sense of perspective. Let’s hope his grandparents don’t find any scribblings about manga demons, or he’ll be in there for life.
Oh well. At least Poole will be relieved to learn that the Supreme Court recently banned execution of juvenile offenders. In Roper v. Simmons, Justice Kennedy, writing for a 5-to-4 majority, cited recent neurological and sociological studies establishing that the overwhelming majority of those under 18 are not developmentally mature enough to be swayed by the incentives of either retribution or deterrence, the two stated justifications for the death penalty. Kennedy’s opinion also cited an international consensus against executing juveniles–noting “the stark reality that the United States is the only country in the world that continues to give official sanction to the juvenile death penalty.”
But given the likely shift with even a single new Bush appointee to the Court, Mr. Poole would do well to heed the dissent in Roper, written by Justice Scalia and joined by Bush’s two other favorite models for the future, Thomas and Rehnquist. (Justice O’Connor, true to her role as straddler extraordinaire, wrote a separate dissent arguing that some juveniles were mature enough to be executed, some not, and that it should be decided on a case-by-case basis.) Scalia, who once stated that the death penalty is no big deal to practicing Christians who believe in an afterlife, angrily denounced the majority for taking “guidance from the views of foreign courts and legislatures.” Although the majority also cited the fact that thirty states have banned such executions and that it is exceedingly rare in the remaining twenty, Justice Scalia complained that “because I do not believe that the meaning of our Eighth Amendment, any more than the meaning of other provisions of our Constitution…should be determined by the subjective views of five Members of this Court and like-minded foreigners, I dissent.”
At least as much as for the substance, I think Scalia’s rhetorical turns are worth picking apart. First, the majoritarian consensus of the states and of the Supreme Court–oh, yes, and the rest of the planet–are tossed aside as “subjective.” That purported subjectivity is then effectively singularized–he casts it not as a considered, collective vote by a body charged with the construction of the Bill of Rights but rather as a lone spurt of univocal arbitrariness.
The Court, Scalia goes on to say, “thus proclaims itself sole arbiter of our Nation’s moral standards.” By this gesture, Scalia seemingly denigrates the very function of the Court: It is, after all, the highest and final–if not the sole–arbiter of cases and controversies. The very supremacy of the Supreme Court is made to seem almost irrelevant, partly because in Scalia’s construct, the Court is supposedly setting “moral standards” rather than deciding legal limits. “Morality” is figured as almost stolen in such a frame–as snatched from the will of the many and sacrificed to greedy, elitist, injudicious, nonlegislative dictators flying “solo.” (Justice Stevens, in a concurring opinion, makes a point of addressing the question of morality and the Court’s reference to evolving standards of decency: “If the meaning of [the Eighth] Amendment had been frozen when it was originally drafted, it would impose no impediment to the execution of 7-year-old children today.”)
Scalia, of course, is a literalist, hewing to what he maintains is the original intent of the Framers and unusually narrow interpretive models: “Words have no meaning if the views of less than 50 percent of death penalty States can constitute a national consensus.” He finds the assertion of a national consensus “implausible” because “Consulting States that bar the death penalty concerning the necessity of making an exception to the penalty for offenders under 18 is rather like including old-order Amishmen in a consumer-preference poll on the electric car. Of course they don’t like it, but that sheds no light whatever on the point at issue.” The Court itself, he intones repeatedly, has done nothing but “look over the heads of the crowd and pick out its friends.”
This battle over words and their meanings is at root a struggle about fundamentalism–whether judicial, religious or any other form. The majority opinion in Roper meant–really meant–that seventy-two young people who committed their crimes under the age of 18 will get to live a while longer. The literalism with which a young boy’s zombie story is tied to national panic about seeping, undifferentiated terror means–really means–that we had all better watch our loose references to unprincipled vampires and narrow-minded ghouls. As Andrew Marvell wrote: “Besides the force it has to fright/The spirits of the shady night,/The same arts that did gain/A power, must it maintain.”