Thursday, June 26, 2008

Dear Lawgirl

Dear Lawgirl,

Last night was a very good night for me. The fact that you got up in my mug, metaphorically of not, was stimulating to me. You made you're argument lucidly, tactfully (more than I can say for myself re: "Fucking dunces"), and with great candor and passion. I would never be presumptuous enough to assume I am even close to your intellectual level, as you have rightfully earned your intelligence through years of post-secondary education, and I would even garner - judging from your writing style and flair - perhaps even a masters or a doctorate in law. I found out the things I know in life from digging my fingers in the dirt, and feeling my way slowly up the food chain until I had enough brain cells to think on my own. So I could never compete with you, nor would I try. I will however, learn from you, and for that I am extremely grateful.

It may come as a surprise to you and others that although I'm obviously pro-military and retired from that profession in word only, I myself am not a gun owner. I respect the Constitution and the right to bear arms, but I have never owned any kind of a weapon in my life.

I've seen first hand the destructive power of weapons of all types; smelled the stench of things on fire that shouldn't be on fire, to include human flesh; and I do not wish willingly or accidentally to participate in any further loss of human life through the use of firearms. However, I still stand firm in my life-long devotion to this country, EVERY person in it regardless of their social standing or political-social beliefs, and the policies and laws pertaining to our continued existence, peaceful or otherwise.

Which brings me to the SC ruling about the death penalty for child rape. You said last night you had read the decision, and since that's your job, I have no doubt you did. This morning, I awoke and read for several hours the same decision, and I am going to outline the thing that disturbs me the most:

The 5 judges that voted against the death penalty used phrases like "shifting social attitudes", "ever evolving standards of decency", and "international attitudes and feelings towards the death penalty", or words to that effect.

Did the Supreme Court hold a gallop poll before making their decision? Where in the words of our founding fathers does it say anything about "social attitudes" when interpreting the words of the constitution? I'm no lawyer or judge, but I know a thing or two about the SC and their role in our society. It is their job to interpret the constitution, not ask Billy Smith of San Francisco how he thinks they should rule. Mr. Smith has no say in the matter. That's why we HAVE a Supreme Court, for crying out loud. Billy Smith is not smart enough to make these weighty decisions, so we put Anton Scalia in there to do it for him. So it's not the fact that they struck down the death penalty that bothers me. It's the ridiculous reasoning behind it. We are a democracy, not a Marxist or Socialist society. If the SC or anyone else wants to change who we are, then there is a procedure to do so, but I assure you, it will take a toll far greater than we are currently willing to pay. The greatest thing about the United States is our freedom to agree to disagree. If anyone out there doesn't know that, just talk to someone who has recently entered our country from Bosnia, Croatia, the Middle East, or any of dozens of country's throughout the world where the penalty for speaking out is loss of their life.

In closing, thank you for teaching me, Lawgirl. Thank you for being so thoughtful and intelligent. Thanks for bringing my blog to life, if only for a few hours. Thank you for standing side-by-side with me in support of the SSG Maupin's of this country, and thank you for being so passionate about the rule of law in our nation.

Sincerely,

JL4

2 comments:

Law Girl said...

You give me too much credit dear. I have sat in the appropriate chair for the requisite number of years, therefore I have letters after my name that allow me to do my job. That does not entitle me to anything different, or make me any more intelligent than anyone else. But thank you.

Now, as for the death penalty opinion itself, here's my take on it:

In essence the Supremes did take a sort of gallop poll before making their decision. They did this because they are required to do so. The constitution itself does not require them to look to "social attitudes" when interpreting the words of the constitution, nor is it a requirement for every issue in every case. However, here's how it works...

The Supremes interpret the constitution. The interpretation of the constitution has been done for 200 years by the supremes, and the jurisprudential history is laid out in the text of each case that has come before. This binding precident is not lightly overruled, and (in theory), the court will be held to abide by the interpretations that they have laid down before. So, yes, the supremes have to interpret the constitution, but they have to do it in a way that is consistant with the way that they've always done it. Get it? Yeah, I know, this is why there are entire degree fields in Constitutional Law.

So, here's where it gets meaty. As the interpretation of "cruel and unusual punishment" has developed over the course of our country's history, the court has interpreted it so that "its applicability must change as the basic mores of society change." In other words, the court, in previous cases, has held that what we find cruel and unusual today may not be what was cruel and unusual yesterday, and it may not be what is cruel and unusual tomorrow.

SO, the courts that came before this one (the supremes of course) require this one to take a sort of gallup poll to determine what people think is cruel and unusual. I know...I didn't say it made sense, but it is what it is.

Now, the court can't just send out a bunch of telemarketers to call you at dinner time to find out what you think about hanging a rapist. So, the way that they take their poll is to look at the laws. What is the legislation around the country? How are the individual states handeling the issue? How have other courts applied the issue of "cruel and unusual" in their community? THIS is their poll.

And this is where I take issue. Under the constitution the states should have the individual right to make the determinations. In theory they do. Unless they are a state in the minority when making that determination. If more than 5 jurisdictions had decided to apply the death penalty to rape cases the result would have been different. The end. How many more? I don't know.

Now, let me throw a wrench in the whole thing. Take this opinion (rape is bad, but not that bad) and compare it to the other opinion that came down yesterday: Giles v. California. In this case Mr. Giles shot his girlfriend five times. One shot went through her hand as she raised it to ward off the bullet. One shot was in her side, as if she was turning to run away. One shot was consistent with her having been shot while lying on the ground. The shooting took place three weeks after his girlfriend had called 911 to report a domestic abuse incident in which Mr. Giles apparently had her pinned up against the wall choking her, then let her fall to the floor and continued to punch her in the head until he pulled a knife and threatened to kill her.

After the shooting, Mr. Giles fled the scene and was at large for two weeks before being apprehended by police.

Easy peasy...right??? Wrong. His conviction was overturned because statements obtained from his girlfriend at the time of the 911 call were admitted at the murder trial. Apparently if you kill someone just for the sake of killing them, then what they say can't be used against you. BUT, if you kill them to keep them from saying something at your trial, THEN the statements can be used.

Fine line distinction. The guy is out on the street.

At least the rapist got life instead of death.

Can't say I'm a huge fan of the current batch of supremes this week.

JL4 said...

That explanation was marvelous, unfortunately something is seriously warped here.

As far as the opinion polls go, I now have a better understanding of the process they go through, but in some ways I WISH they would use telemarketers to call us at dinner time and ask us if we want to "hang rapists". Knowing that this country is probably 70% middle ground conservative at heart, the telemarketing move would give the Ruth Bader Ginsburg's and the David Souters of the court a genuine understanding of how the American public REALLY feels about predators who attack and both physically and psychologically maime our children.

That is why, Lawgirl, whom one votes for is so friggin critical in this nation. Presidents appoint the judges, and congress approves or disapproves of them.

What kind of judges will Senator's Obama and McCain appoint when the time comes to do so?

What kind of a congressional make-up do we need to have the kind of judges approved that represent the 70% that is the centrist American population, and not the 30% dead left or dead right of most of the people in the land?

In the answer to that question very much lies the future of our country.