Friday, June 27, 2008

Law and Economics--Not Just for Conservatives

As a diehard opponent of the death penalty, I have been thoroughly gladdened by the U.S. Supreme Court's recent curtailment of the practice.

The United States is the only western democracy that makes use of the practice of having its states and federal government execute human beings. I believe that after 30 years of attempting to let U.S. politicians do the right thing, the Supreme Court has finally realized that there are apparently no limits on the appetite of American legislators in terms of application of the death penalty and thus, it falls into the Court's lap to do the dirty work or orchestrating the abolition of the death penalty.

The most recent case, Kennedy, dealt with whether the death penalty could be given to rapists of individuals under 12 years old. And in a nice, bit of irony, Kennedy, Justice Kennedy, that is, was the deciding vote among the five conservatives on the court.

First of all, I find the whole notion that the application of the death penalty should be dependent upon the victim to be despicable. It doesn't matter to me whether the person raped was a police officer, housewife or 12 year old girl--if the crime is the same, why should the penalty differ?

The arguments in favor of this differentiation, "because it was a child" are pretty thin and the Court was right to not let them carry the day.

What was really great about this opinion, however, was the way that the Court's liberals rubbed the use of Law and Economics in the face of the Court's ultra-conservative rightwing. Here's a quote:

"[B]y in effect making the punishment for child rape and murder equivalent, a State that punishes child rape by death may remove a strong incentive for the rapist not to kill the victim. Assuming the offender behaves in a rational way, as one must to justify the penalty on grounds of deterrence, the penalty in some respects gives less protection, not more, to the victim, who is often the sole witness to the crime. It might be argued that, even if the death penalty results in a marginal increase in the incentive to kill, this is counterbalanced by a marginally increased deterrent to commit the crime at all. Whatever balance the legislature strikes, however, uncertainty on the point makes the argument for the penalty less compelling than for homicide crimes."

This is an excellent example of how smart liberals can use law and economics to carry the day.

The other thing that was great about this case was the fact that it involved the 8th Amendment's "cruel and unusual punishment clause", something that basically throws Justice Scalia into apoplexy because his generally well thought-out legal theory of textualism cannot handle examples where the legislature throws the decision to the Court on purpose. Scalia's fallback here tends to be a more Borkean mode of analysis of original intent, which involves looking at the history of the amendment and trying to project what the legislators intended.

Well, what if the legislators intended for Justice Scalia to be Plato and decide the issue based upon any myriad of reasons? Scalia's theory doesn't have an answer for this and his conclusion that the "cruel and unusual punishment" clause was inserted to merely foreclose punishments that were already considered cruel and unusual back in 1789 seems fairly redundant.

Anyway, after a series of terrible disappointments by this Court and Administration for libertarians in terms of abandoning Lopez, we have finally gotten some heartening decisions on the 2nd and 8th Amendments due to the movement of Anthony Kennedy from side to side. Neither Presidential candidate had anything very intelligent to say about this decision, which seems to reinforce the point that American politicians simply lack the courage to deal with the death penalty in a forthright manner, so thanks be to G-d for the "cruel and unusual punishment" clause.

Sunday, June 22, 2008

Letter to George Will

Dear Mr. Will:

Regarding your article in the Washington Post on Sunday, June 22, 2008 --

For someone who writes a fair number of excellent columns, you completely blew it on this one. I can only wonder who did the research on this column and I further not that your citation from someone named Heather Mac Donald is absolutely wrong.

Mr. Will, if you believe that "the criminal justice system will do everything it can to keep you out of the ... federal slammer," then you definitely need to start attending some federal sentencing hearings. If it quite common for non-violent federal offenders to get federal prison time for first offenses.

You quibble about the proportion of crack defendants in prison and seem to blame it on the higher murder rate among blacks, as though murderers make up the majority of inmates in the U.S.

You never bother to address the fact that the U.S. has more people in prison than China and India combined and imprisons at a far higher rate that Great Britain. What accounts for these differences? How do these nations stay safe without imprisoning at the rate which we do?

Apparently your interest waned at the point that support for you hypothesis wavered.

You may quibble with Obama over his definition of what consitutes a "young, black male" but your article itself is simply shoddily done and quite disappointing given the caliber of work that you often do.

William Loeffler

Criminal Justice Act Attorney