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The Supreme Court at Work By: Joseph Klein
FrontPageMagazine.com | Tuesday, April 22, 2008

Under Chief Justice John Roberts’ astute leadership, the Supreme Court concluded last week that the means of carrying out capital punishment in many states is not “cruel and unusual” punishment prohibited by the Eighth Amendment of the Constitution. By a 7-to-2 vote, in the case of Baze v. Rees, the Court upheld Kentucky’s method of executing a convicted murderer by lethal injection. This case is a sterling example of how the judiciary should interpret the text and history of the constitutional clause at issue to reach an appropriate result. The Court eschewed making public policy from the bench or importing foreign rulings or world opinion as guides for what the United States Constitution supposedly should mean.

Justice Roberts’ opinion stated, in no uncertain terms, that “capital punishment is constitutional.” He reiterated what the Supreme Court had previously held – that “the punishment of death is not cruel within the meaning of that word as used in the Constitution.”

Justice Roberts also made the common sense point that the “risk of pain is inherent in any method of execution—no matter how humane.” Therefore, he concluded, the Constitution does not demand the elimination of all risk of incidental pain in the course of carrying out a capital punishment sentence and upheld the particular method of lethal injection employed in Kentucky:

“Simply because an execution method may result in pain, either by accident or as an inescapable consequence of death, does not establish the sort of ‘objectively intolerable risk of harm’ that qualifies as cruel and unusual.”

In his opinion, Justice Roberts acknowledged that reasonable people of good faith disagree on the morality and efficacy of capital punishment, and that many who oppose it would never find any method of execution acceptable. However, that is precisely the kind of decision which, under the United States Constitution, is to be decided by the democratically elected representatives and not the judiciary.

Of course, there must be safeguards for the rights of the criminal defendant lest we descend into arbitrary arrests, kangaroo trials and truly cruel executions. Ensuring such safeguards is the proper role of the courts, not to replace the judgment of the people on whether capital punishment is ever merited in the first place.

Justice Roberts did not consider in his analysis whether the permissibility of capital punishment in the United States was out of step with world opinion. The European Union’s ban on capital punishment and the UN General Assembly resolution passed late last year declaring a world-wide moratorium on the death penalty are irrelevant when it comes to interpreting our Constitution.

Amnesty International’s official response to the Supreme Court decision on lethal injections was to reiterate its opposition to the death penalty “in all cases, unconditionally, regardless of the method chosen to kill the condemned prisoner…there is no such thing as a humane, fair, reliable or useful death penalty system.” Amnesty International goes on to call the death penalty “a destructive, diversionary and divisive public policy that is not consistent with widely held values.”

As proof of such “widely held values,” Amnesty International points to the UN General Assembly resolution calling for a worldwide moratorium on the death penalty.

When I dared to suggest in a FrontPage article about a year ago that the United Nations had no business lecturing us on how to deal with the death penalty in our own country, a blogger belonging to Amnesty International accused me of being among those who believe that “they alone are the arbiters of which human beings are treated by society as, well, human beings.” The title of the blogger’s diatribe was “if adam raised a cain what raised a joe klein???”

Of course, this self-righteous ideologue misses the entire point. It is the convicted murderer who has made himself the arbiter of another human being’s right to live. The murderer extinguished an innocent life and deprived society of what the victim might have contributed to the human family. To say that society must always let the murderer live, no matter how heinous the crime, is to decide that the murderer’s life is somehow worth more than that of the human being whose life the murderer ended by his arbitrary act. Who decides how society should respond to the murderer’s actions, and under what process, are the questions that strident death penalty opponents like the Amnesty International blogger choose to avoid.

The Supreme Court has opted for the democratic process to determine whether the death penalty should be used in any murder cases, so long as there are proper safeguards in place to ensure that the defendant is accorded due process and fair treatment. The states are entitled to pass laws that reflect their citizens' moral judgment on capital punishment for such horrific crimes.

However, the Court has also recognized that there are limits on how far legislatures alone should be entrusted in expanding the class of crimes and defendants eligible for the death penalty. It has already prohibited the death penalty for juveniles and the mentally retarded who are convicted of murder. And the Court heard last week whether it was constitutionally permissible to sentence a man to death for something less than murder – the crime of raping his 8 year old stepdaughter. A Louisiana law allows state prosecutors to seek the death penalty against criminals convicted of raping children under the age of 12. Five other states have similar laws. The question posed to the Court was whether the Constitution permits democratically elected legislatures to choose to allow capital punishment for the very worst child rapists.

The Supreme Court ruled thirty years ago that capital punishment was too severe a punishment for the crime of adult rape since no life had been taken. That case involved a 16 year old married victim whom the Court regarded as an adult for the purposes of deciding whether her rapist deserved the death penalty. However, in oral argument on the child rape case, the justices appeared to be divided over whether the rape of a child as young as 8 was sufficiently more egregious to merit the death penalty.

In deciding this case, the Supreme Court justices must follow the same careful interpretive analysis of the Constitution’s text and history as the Court’s majority did in the lethal injection case. It must avoid the temptation to consider world opinion, foreign laws or foreign court decisions as sources for its ruling, which some justices unfortunately did several years ago in overruling the death sentence of a Missouri defendant who was 17-years-old when he murdered a St. Louis area woman in 1993. In that case, Roper v. Simmons, the Court considered the defendant to be a juvenile at the time he committed the murder for the purposes of determining his appropriate sentence. Ironically, the Supreme Court considered a 16 year old rape victim to be an adult – too old for the crime against her to be considered serious enough to deserve the death penalty - while deciding that a 17 year old murderer was too young when he killed his victim to be considered eligible for the death penalty.

Justice Kennedy, who wrote the majority opinion in Roper v. Simmons, concluded that imposing the death penalty for juveniles as old as 17 was out of step with the clear consensus of the rest of the world. He said that “the express affirmation of certain fundamental rights by other nations and peoples…underscores the centrality of those same rights within our own heritage of freedom.” Justice Scalia strongly disagreed with this approach, which interpreted constitutional provisions by reference to subjective values outside the framework and history of the Constitution itself. Justice Scalia had it right when he responded in his dissenting opinion that “[W]hat these foreign sources 'affirm', rather than repudiate, is the justices' own notion of how the world ought to be, and their diktat that it shall be so henceforth in America.”

The Constitution does not separate us from the rest of the world. Yet it does protect us from having our core liberties as a free sovereign people undermined by some sort of global “value system” adopted by a consensus of officials unaccountable to the American people. Conforming U.S. constitutional law to fit within what some have characterized as “widely held values” in the rest of the world against the death penalty is inimical to Americans’ identity as a sovereign people ruling ourselves under a written compact that defines the authority of our government and its limits.

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