Man Without Qualities

Thursday, March 06, 2003

Arbitrary And Capricious

By a 5-to-4 vote, the Supreme Court has just upheld the California "three strikes" law, which imposes for multiple offenses prison terms vastly longer and harsher than would be warranted or Constitutionally permissible for the last offense alone. The Court essentially held that even where a punishment would be constitutionally prohibited as excessive for a crime which is a first offense, the state may impose that punishment for the same crime if the crime is one of a series of crimes. The Court based this decision on its conclusion that the state has an interest in deterring repeat offenders that goes beyond the particular final crime, and that the severe punishment authorized where a crime comes at the end of a series of crimes is not "grossly disproportional" given that state interest. Justices Antonin Scalia and Clarence Thomas provided the fourth and fifth vote but refused to sign the Justice O'Connor's opinion because they reject its premise that the Eighth Amendment requires proportionality in sentencing. In their view, the Eighth Amendment restricts only types of punishment, not length of sentences.

The case is interesting for many reasons, but especially with respect to the Constitutional status of the death penalty. A little while ago a green grocer was shot in a store robbery near the abode of the Man Without Qualities. The grocer did not die. Investigation revealed that his assailant had been previously convicted of seriously injuring several other people, either intending to kill them or completely indifferent as to whether they died. It occurred to me that such circumstances are likely rather common - especially in prison assaults where one convict attacks another.

But it is said that such assailants cannot be executed for their repeated acts of attempted murder unless somebody actually dies. The Supreme Court appears to have held that imposition of the death penalty for crimes not involving death is prohibited by the Eighth Amendment ban on "cruel and unusual punishment:"

For [a] rapist to be executed in Georgia, it must ... be found not only that he committed rape but also that one or more of the following aggravating circumstances were present: (1) that the rape was committed by a person with a prior record of conviction for a capital felony; (2) that the rape was committed while the offender was engaged in the commission of another capital felony, or aggravated battery; or (3) the rape "was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or aggravated battery to the victim." Here, the first two of these aggravating circumstances were alleged and found by the jury. Neither of these circumstances, nor both of them together, change our conclusion that the death sentence imposed on Coker is a disproportionate punishment for rape. Coker had prior convictions for capital felonies - rape, murder, and kidnaping - but these prior convictions do not change the fact that the instant crime being punished is a rape not involving the taking of life.

Such Supreme Court language - and similar language - has often been said to bar the death penalty where no life is actually taken. But does it, and should it? The death penalty may be imposed against all members of a conspiracy or joint felony even where only one member actually takes the life. So it is certainly clear that the Supreme Court does not construe the Eighth Amendment as requiring that the death penalty be imposed only against those who actually kill.

What about "repeat offenders?" Suppose a criminal shoots someone with intent to kill and the bullet barely misses the victim's heart. Suppose the criminal does this on three occasions. In other words, assume the criminal three times actually intends to kill, actually commits an act designed to kill and only avoids killing by chance. Why should the chance survival of his victims cause such a person to be treated under the Constitution as less culpable than a person who merely participates in a felony during which a comrade takes a life? The Court's recognition of the state's interest in suppressing repeat offenders should justify considering such a series of attempted murders as "involving the taking of life." The Supreme Court's distinctions here - if they are given their common construction - are themselves arbitrary and capricious.

Those who repeatedly demonstrate intent to kill and commit acts designed to kill that almost kill should be treated as what they manifestly are - killers. Society should not have to wait for someone to actually die at the hands of such a repeat offender in order to impose the death penalty. The easiest case should be an attempted murder by a person serving a life sentence for a prior murder. What excuse can there be for not executing such a criminal if murderers are being executed in the same state? Or is the state limited to sending him to prison for a second life?

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