Wednesday, December 07, 2005

Great moments in judical activism

I'm no big fan of capital punishment, but here is an interesting bit of historical perspective in today’s Boston Globe that can be inferred as a warning to judicial activists of all stripes. An AP story about the upcoming clemency hearing of convicted murderer Stanley Williams entitled 'Odds against clemency for gang founder' notes that a condemned prisoner’s chances of receiving executive clemency have decreased markedly since the 1970s. Here are some excerpts:
The last California governor to grant clemency was Ronald Reagan in 1967, but the case was far different from Williams's situation and times have changed dramatically since then…[clemency] has become a little-used option in the three decades since states resumed executions. Before 1976, the year the US Supreme Court allowed capital punishment to resume after a brief hiatus, clemency was routinely granted. According to the Bureau of Justice Statistics, 204 inmates nationwide were spared between 1960 and 1970. Excluding the 167 Illinois inmates whose death sentences were commuted in 2003, only 63 lives have been spared since 1976…
Why? A few paragraphs below some California history is recalled:
The odds of getting a reprieve were better in the days before the California Supreme Court twice overturned the death penalty in 1972 and 1976. Following that, the public and lawmakers began cracking down on crime. The Legislature reinstated the death penalty in 1977. A year later, 72 percent of California voters adopted an even stiffer capital punishment law. In 1986, the voters removed three state Supreme Court justices for reversing too many death sentences.
So what we have here is, I believe, a case of liberal judicial activism that has completely backfired. I don’t recall the facts of the California Supreme Court decisions, but given the dates and the state, it is not hard to I guess by ‘the public and lawmakers began cracking down on crime’ they mean that the public through pressure on elected representatives enacted laws that reinstated (and how!) punishment practices that were both constitutional and widely supported. A little Googling of the subject takes one to this California Department of Corrections page which has some relevant history:
Legal Challenges and Changes
For 25 years after 1967, there were no executions in California due to various State and United States Supreme Court decisions.

In 1972 the California Supreme Court found that the death penalty constituted cruel and unusual punishment under the state constitution. As a result, 107 individuals had their sentences changed to other than death. In November 1972, nine months after the decision, the California electorate amended the state constitution and overruled the State Supreme Court.

In 1973 the United States Supreme Court held that the death penalty was unconstitutional as it was being administered at that time in a number of states.
California legislation was passed in 1973 which made the death penalty mandatory in certain cases under certain conditions. Among these were kidnapping if the victim dies, train wrecking if any person dies, assault by a life prisoner if the victim dies within a year, treason against the state, and first degree murder under specific conditions (for hire, of a peace officer, of a witness to prevent testimony, if committed during a robbery or burglary, if committed during course of a rape by force, if committed during performance of lewd and lascivious acts upon children, by persons previously convicted of murder).

In late 1976, the California Supreme Court, basing its decision on a United States Supreme Court ruling earlier that year, held that the California death penalty statute was unconstitutional under the Federal Constitution because it did not allow the defendant to present any evidence in mitigation. Following this ruling, 70 inmates had their sentences changed to other than death.

Capital Punishment Reinstated

The California State Legislature re-enacted the death penalty statute in 1977. Under the new statute, evidence in mitigation was permitted.

The death penalty was reinstated as a possible punishment for first degree murder under certain conditions. These "special circumstances" include: murder for financial gain, murder by a person previously convicted of murder, murder of multiple victims, murder with torture, murder of a peace officer, murder of a witness to prevent testimony and several other murders under particular circumstances.

In 1977, the Penal Code also was revised to include the sentence of life imprisonment without the possibility of parole. At that time, the punishment for kidnapping for ransom, extortion, or robbery was changed from death to life without parole. Treason, train derailing or wrecking, and securing the death of an innocent person through perjury became punishable by death or life imprisonment without parole.

Proposition 7, on the California ballot in November 1978, superseded the 1977 statutes and is the death penalty statute under which California currently operates.
Judicial activists beware, I would say is the lesson here. Activitsts who sought through the courts to"impose their own moral view on others" (to use a term from John Kerry and others) have failed and have wasted their moral ammunition in the process. Unless they would say that two wholesale batches of commutations constitutes success.

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