Tuesday, June 29, 2010

We dodged a bullet

"Sen." Jess Sessions has repeatedly shown himself to be one of the slimiest Republicans in the U.S. Senate. And we should be glad we dodged a bullet in refusing to give him a judgeship. But he's a legal eedjit as well:
Ranking Member Jeff Sessions (R-AL) came closest to citing individual cases, though ultimately fell back on a generalization.

"Perhaps the most activist decision in history, or actually it wasn't a majority decision, was Brennan and Marshall dissenting in every death penalty case because they said the death penalty violated the constitution," Sessions claimed. "The only thing it violated was their idea of what good policy was. And they just dissented on every death penalty case. And said 'based on my view that it's cruel and unusual punishment.'"

By way of comparison, I asked him if yesterday's Supreme Court decision, throwing out a handgun ban in Chicago, amounted to judicial activism.

Sessions insisted it did not. "It violated the Constitution," Sessions said of the Chicago law.

How is that any different than Marshall dissenting in death penalty cases?

"Well, first you look at the Constitution as a whole....The Constitution says you can't inflict cruel and unusual punishment. Well, every state had the death penalty. It wasn't unusual. It has to be both."
So Sessions thinks that "unusual" punishment is allowed by the Constitution. And "cruel" punishment is also allowed. The only thing not allowed is punishment that is simultaneously "cruel and unusual".

It seems Sessions is saying, "you can be as cruel as you want, or the punishment can be as unusual as possible, and that's OK". Not exactly. Sentences that are very cruel are often "unusual" as well, and sentences that are unusual may well be "cruel".

And that's before we look at the line of capital cases, where the court has held that the death penalty is "unusual" (at present times) and this is why it was struck down (perhaps there's a sub-thread to such arguments that the death penalty is per se "cruel", but that's not obvious).

Then there's the hotly debated subject as to whether lethal injection is "cruel" (despite it's being the most common form of execution in the U.S. today).

In non-capital cases, the analysis also considers each factor. In Tropp v. Dulles. the court recognised that the death penalty is available to punish deserters, so stripping of citizenship is hardly "cruel" excess there (see page 99), and thus the distinction must lie in whether such punishment is "unusual" (the court found the punishment unconstitutional).

If anything, it is Sessions that's out of the mainstream here. And revealing his character.

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