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This blog is the work of an educated civilian, not of an expert in the fields discussed.

Wednesday, November 12, 2008

Supremes: Victim Impacts (Human and Animal)

And Also: Republicans are falling all over themselves to both welcome Obama in and assure us the Republican (conservative) brand is okay ... it just hasn't been truly honored. Sure. I do wonder when they were (consistently) for "smaller government and individual liberty." Or, how Ron Paul thinks his list of principles reflects his party in action. Um ever. The governor of SC speaking about the "unthinkable wrong of segregation" as some neutral matter also is a bit amusing. Maybe, they just are wrong?

In a cheery bit of morning listening, there was news that the mother of a young girl brutally raped and murdered was planning to speak to the parole board to ensure that the person responsible would stay in prison. A clip of the girl's voice was also played as it would be to the authorities involved. The mom said that the guy did not show any remorse or offer any apologizes. Let's be honest here. It is quite true that we have various rituals (a fitting word, I think) to provide a chance for the accused to admit error (e.g., allocution) and perhaps remorse.

But, often they are largely for show (pleas tend to be cost/benefit affairs, even the innocent at times not willing to risk it, admitting "guilt" not quite the point), and/or involve some degenerate sorts. Overall, the sort of person who can rape and kill young children is missing something, including the sort of conscience that could honestly supply remorse. Or, the felt need to supply it for show. So, I understand (as far as I can) the mother's need (or anger) on the point, but there is a certain fantasy element to it -- how important is it really? Remorse can truly come, including after some truly heinous crimes, but in some cases, it just might never come.
Until today our capital punishment jurisprudence has required that any decision to impose the death penalty be based solely on evidence that tends to inform the jury about the character of the offense and the character of the defendant. Evidence that serves no purpose other than to appeal to the sympathies or emotions of the jurors has never been considered admissible. Thus, if a defendant, who had murdered a convenience store clerk in cold blood in the course of an armed robbery, offered evidence unknown to him at the time of the crime about the immoral character of his victim, all would recognize immediately that the evidence was irrelevant and inadmissible. Evenhanded justice requires that the same constraint be imposed on the advocate of the death penalty. ...

The fact that each of us is unique is a proposition so obvious that it surely requires no evidentiary support. What is not obvious, however, is the way in which the character or reputation in one case may differ from that of other possible victims.

-- Justice Stevens (Payne v. Tennessee, dissenting opinion)

This also goes back to my reference yesterday to a victim impact statement case that the Supremes did not accept for review. The Court upheld the use of VIS in death penalty cases in 1991, but provided little guidance on regulation of their use. Justice Souter, who joined Stevens and Breyer in dissenting from denial of cert., was a key vote in Payne. But, Souter (and other justices) suggested there were limits to their use, and Justice Breyer in his dissent here focused on the question of standards. The development of VIS to include extended mini-documentaries with music and pictures akin to Ken Burns documentaries underlines the need for such standards.

Meanwhile, the Supremes decided a case involving environmental limits on the use of naval sonar that affects marine mammals. Chief Justice Roberts reversed the lower court's injunction, bluntly stating "The Court of Appeals was wrong." The opinion uses quotes from George Washington and Theodore Roosevelt as bookends to highlight the importance of discretion in the area of military preparation. Justice Breyer (joined in part by Stevens) concurred in part.* Ginsburg (with Souter) dissented, agreeing with the lower courts and wary about the navy/executive acting on its own without attempting legislative relief. The majority in part refers to an exception that provides for such discretion, but the dissent argues that this only covers part of the matter at hand:
President determines that the activity is in the paramount interest of the United States. No such exemption shall be granted on the basis of a lack of appropriations unless the President has specifically requested such appropriations as part of the budgetary process, and the Congress has failed to make available the requested appropriations.

The last part, not at issue here, seems off. If they did not "make available" the money, wouldn't it often be for policy reasons that the exception would override on the President's say-so? Anyway, military discretion and factual issues were of importance, but the dissent's concern for executive overreaching is appreciated. The opinion also again shows a bit of the CJ's writing flair.


* [Update] I'd add that one account at least spoke of the opinion being "5-4," when only two justices fully dissented, and Stevens only joined the part of Justice Breyer's opinion that "would thus vacate the preliminary injunction imposed by the District Court to the extent it has been challenged by the Navy."