Discussing the Supreme Court's March 1 decision in Roper v. Simmons, which struck down capital punishment for minors, Washington Times editorial page editor Tony Blankley misquoted Justice Anthony M. Kennedy's majority opinion and misrepresented Kennedy's assertion that a "national consensus" has emerged in the United States against executing juveniles. Blankley claimed that the majority "based" its conclusion on "the fact that '18 states -- or 47 percent of states that permit capital punishment -- now have legislation prohibiting the execution of offenders under 18.'" But the quotation Blankley used does not come from Kennedy's majority opinion at all, but rather from Justice Antonin Scalia's dissenting opinion. Further, the fact cited in the quotation was not the "basis" of Kennedy's assertion.
From Blankley's March 2 column:
[T]he court yesterday found that in the last 15 years a national consensus against such punishment [i.e., the death penalty for minors] had emerged. The majority based that conclusion on the fact that "18 states -- or 47 percent of states that permit capital punishment -- now have legislation prohibiting the execution of offenders under 18," and four of those states have adopted such legislation since the Supreme Court's ruling of 15 years ago.
Moreover, though Kennedy did mention the 18 states that specifically prohibit the execution of minors while allowing the execution of adults, this fact was only one of several that Kennedy cited in support of his claim that a "national consensus" has emerged. He also noted that 12 other states ban capital punishment altogether, writing: "30 States prohibit the juvenile death penalty, comprising 12 that have rejected the death penalty altogether and 18 that maintain it but, by express provision or judicial interpretation, exclude juveniles from its reach." But Blankley did not even mention these 12 additional states, let alone that the majority had taken these states into account when assessing the "national consensus."
Blankley also ignored a third piece of evidence of a "national consensus" that Kennedy cited: Of the 20 states in which the execution of juveniles is legally permissible, only six had actually carried out such an execution since the the Supreme Court last considered the issue in the 1989 case of Stanford v. Kentucky.
A March 2 Wall Street Journal editorial similarly suggested the 18 states that allow capital punishment for adults, but ban it for minors, formed the sole basis of Kennedy's finding that a "national consensus" against the death penalty for minors has emerged. Though the Journal did mention that 12 states ban the death penalty entirely, it did not explain that the 12 states were a factor in Kennedy's opinion, leading readers to conclude that the majority's rationale was based on faulty arithmetic.
From the March 2 Journal editorial:
Justice Kennedy rests his decision on his assertion that American society has reached a "national consensus" against capital punishment for juveniles, and that laws allowing it contravene modern "standards of decency." His evidence for this "consensus" is that of the 38 states that permit capital punishment, 18 have laws prohibiting the execution of murderers under the age of 18. As we do the math, that's a minority of 47% of those states. The dozen states that have no death penalty offer no views about special immunity for juveniles -- and all 12 permit 16- and 17-year-olds to be treated as adults when charged with non-capital offenses.
Media Matters for America president and CEO David Brock noted some of Blankley's previous distortions, inaccuracies and baseless smears in a letter to Santa Monica, California, radio station KCRW, which recently added Blankley as a new co-host for its political show Left, Right & Center.