In my last column, I discussed the Supreme Court's abominable decision outlawing the death penalty for murderers under the age of 18. I have a few more complaints.
First, much of the Court's analytical emphasis considers the plight of the offenders. Conspicuously lost in the equation are concerns for the victims and society at large, for whom the Court demonstrates a stunning disregard.
When I took Criminal Law in law school in the mid-Seventies, we studied the theories of punishment, including prevention, sometimes referred to as specific deterrence; restraint; rehabilitation; general deterrence; and retribution. Notice how each promotes the larger interests of society.
Prevention seeks to deter the particular criminal from committing future crimes by making his punishment unpleasant. If it works, society obviously benefits. The idea of restraint is to protect society from the particular criminal by isolating him through incarceration.
Rehabilitation aims to reform a criminal into a law-abiding citizen, thereby benefiting both the individual and society. With general deterrence, punishment is designed to prevent other wrongdoers from committing crimes because of their fear of similar punishment. Again, both the potential criminal and society benefit.
Retribution may strike some modern readers as barbaric, but it has always been a part of punishment's mosaic. But rather than thinking of it as society's sanctioning of the human instinct for revenge, understand that punishment serves society's legitimate interest in justice. It also promotes respect for the law and thereby suppresses society's appetite for vigilantism.
Without question, our courts should strive to protect the rights of the accused, and even the convicted offender, but they must not, in the process, ignore the interests of the victim and society, as the Court did in this case.
The Court not only ignored the interests of the victim and society. It also omitted from its analysis an intellectually honest appraisal of the Framers' purpose in outlawing cruel and unusual punishment.
Depending on which constitutional historians you believe, the Framers intended to prevent torture and abuse and/or arbitrary, capricious and discriminatory punishment by the government. They clearly didn't intend to establish a federal constitutional prohibition on capital punishment for minors. But then again, why would the Court want to trouble itself inquiring into the Framers' original intent when those 18th century barbarians had advanced so little in the "evolving standards of decency" continuum?
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