By Bonnie Chernin Rogoff
Founder, Jews For Life
July 1, 2002
It isn't the first time the U.S. Supreme Court Justices intentionally misinterpreted the Constitution, enabling them to legislate laws from the bench that conformed to their political views. In 1972, the Furman vs. Georgia decision used the Eighth Amendment's cruel and unusual punishments clause to strike down state death penalty laws. One year later in Roe v. Wade, the Fourth and Fourteenth Amendments were redefined, unborn babies were declared non-persons and women's wombs were deemed private property, although it is quite a stretch to compare abortion to government seizure. However, wholesale abortion...I'm sorry, reproductive freedom...did ensue, much to the delight of the revisionist court.
Recently, two more decisions on abortion and the death penalty confirmed the Court is unwilling to restrain itself to adjudicating law by relying on Constitutional precedent. In Stenberg vs. Carhart, the Court struck down all state partial birth abortion laws, permitting baby slaughter up to birth because a bogus "health of the mother" stipulation was not included. (For good reason, too; health was defined by Roe to include anything, even a pregnant girl's age, as a condition to be treated.) Last week, the Court's liberal justices did it again, striking down a state death penalty law in Atkins vs. Illinois on the grounds it is cruel and unusual punishment to execute a killer because his I.Q. was 59. Never mind that the killer was fully cognizant of his actions. He was aware enough to know right from wrong, and that is why he ran from the police - to evade capture. I am reminded of the character Lennie, the brutish simpleton in John Steinbeck's novel "Of Mice and Men." Lennie accidentally killed a puppy by petting it too hard, and then killed a woman the same way, in a fit of confusion, ignorant of his strength. However, even Lennie knew he did something wrong and ran away, remaining in a designated hiding place until his buddy George came to him.
Fortunately, Lennie is a fictional character that was created infantile, not evil. Who decides the fates of all the real life Lennies in the world? Why, psychiatrists, of course! They don't guess…they know all the intricate details that were at work inside the minds of those who killed in the past. They have less proof that mental unfitness exists than Creationists have that G-d exists, but guess which group gets respect? Are social engineers any different? They know - but won't concede - the difference between justice and revenge; one is fairness whereas the other is retribution. Nevertheless, they interchange the terms and blur the meanings. When you are an activist with an agenda to fulfill, who cares about trivialities such as truth?
But why stop there? Why not reframe the Constitution so that everyone will see it your way, and not the Founding Fathers' way? The application of capital punishment is not a violation of the Eighth Amendment. It can't be. For one thing, the cruel and unusual punishments clause was intended to prevent the horrific tortures inflicted upon living persons. Such punishments were prevalent under English common law and throughout medieval Europe.
Another problem for death penalty opponents is how can they waltz around the Fifth Amendment? It says in part that "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury… nor deprived of life, liberty or property without due process of law." By implication then, a killer may forfeit his life, provided certain conditions were met to prevent indiscriminate executions. Certainly, our forefathers supported the death penalty and its implementation.
To counter the abolitionists charges of "revenge", death penalty supporters often take a defensive posture. In his essay, "Yes the Death Penalty Deters," William Tucker analyzes the Bureau of Criminal Justice statistics from 1930 to the present.
Tracking the number of executions and murders there is a correlation; in states that enforce capital punishment felony murders declined. In states with high murder rates, such as Texas, the consistent application of the death penalty eventually resulted in a significant reduction in capital crimes. That's great, but it misses the point. The purpose of capital punishment is to exact an appropriate measure of justice for an offense so heinous, no other punishment would suffice. It is society's way of obtaining justice on behalf of the victims' bereaved family members. We are saying that as Americans, we will not tolerate such crimes against our fellow citizens, because after all, we can be next. By zeroing in on the issue of deterrence, we play into the hands of death penalty opponents. Should killings escalate in states where capital punishment is enforced how can we defend executions? If most murders are passion crimes that are not prevented by executions - as Mr. Tucker indicated was the case in the early 1960's - then how do we answer the charge that capital punishment is obsolete? Therefore, rather than react defensively, we should proudly proclaim, "The death penalty is necessary because it is just, and right, and avenges the victim and society. Period."
In a majority opinion written thirteen years ago by Supreme Court Justice Sandra Day O'Connor, the decision upheld that executions of mentally retarded capital offenders were constitutional. Now she has changed her mind. Fifty years ago, sane people would not have questioned that infanticide was murder, not a choice, and that people who murdered in cold blood were bad, not misunderstood.
Today, many Americans believe it is perfectly acceptable to butcher innocent unborn children as a choice. Many smug pro-abortion apologists, through ignorance or lack of objectivity, won't admit that a choice is available to murderers who, by opting to kill, sign their death warrants. Victims, born and unborn have no rights. One disadvantage is they are hidden; babies reside invisibly in the womb, and homicide victims in memory. G-d is hidden from those who refuse to see Him. Those who deny Divine supremacy and judgment above our civil laws endanger our lives by making our civil laws moot. It is He who said, "Thou shalt not murder." Not Justice O'Connor. Isn't it time we get our priorities straight?
Before long, defense attorneys will gather their psychiatrists together and all killers, regardless of competency or intent, will be declared mentally unfit and manage to skirt the death penalty. Fewer death sentences means more prisoners, less cell space, more parolees, and more murders. Next time you find yourself trapped in a dark alley with a suspicious looking character approaching, don't look for a safety net from our government or courts.
Copyright 2002 by Bonnie Chernin Rogoff. Not to be reproduced in any fashion, in whole or in part, without written consent from the author. All rights reserved.