European Stars and Stripes (Newspaper) - July 6, 1991, Darmstadt, Hesse Saturday july 6, 1991 the stars and stripes Page 13 commentary George will strict interpretation can be two edged sword last week history had a Nice symmetry. The Day Thurgood Marshall announced his resignation from the supreme court the court announced two decisions each reversing recent precedents that framed the coming debate on confirmation of Clarence Thomas. The court ruled 5-4 that a Michigan Law imposing mandatory life sentences without parole for Possession of 1.5 or More pounds of cocaine does not violate the Constitution s prohibition of a cruel and unusual punishments. That amount of cocaine sufficient for upward of 60,000 doses a Street value of $100,000 is not trivial. But the sentence measured against Federal sentencing guidelines 10 years for that offence or other states practices May strike Many As disproportionate. And in 1983 the court invalidated a mandatory life sentence for the seventh conviction for a non violent recidivist he had passed a bad Check Worth $100 because the court said the ban on cruel and unusual punishments mandates some degree of proportionality a punishment that a a fits the crime. Last week the court said the framers of the Constitution chose not to emulate those state constitutions that in 1787 explicitly mandated a proportionality principle regarding punishment. The a cruel and unusual language was adopted to prevent Legislatures from resorting to particular modes of punishment that Are both cruel and unusual. The history of american penology shows that harsh mandatory sentences Are not unusual. Traditions of federalism allow for states to treat similar cases differently Given different local heeds and concerns. And if judges undertake to Monitor the proportionality of All sentencing decisions of 50 state Legislatures the judges discretion will be unguided by standards derived either from history or the constitutions text. Marshall dissented. In the second Case decided on the Day Marshall departed the court reversed 1987, and 1989 decisions ruling that at the sentencing stage of a capital Case jurors May be presented with evidence about a murdered persons character and the suffering the crime caused his family. The court said simply that in the 1987 and 1989 cases the court erred in wringing from the eighth amendment the idea that states Are not permitted to decide that a victim Impact evidence helps juries decide the appropriate punishment. Marshall dissented. Liberal critics of the court Are today expressing a new found and no doubt evanescent reverence for stare dec Isis a the doctrine that precedents should be followed. That is a sound general Rule. It is not a categorical imperative. It could Only be an ironclad Rule if we assumed that the court never makes mistakes or that mistakes should never be corrected. Were All precedents sacred regardless of the reasoning by which they were reached there would not have been Many of the court rulings most revered by liberals including Brown is. Board of education the school desegregation decision that overturned the 58-year-old separate but equal ruling in Plessy v. Ferguson. Every year the court overturns some precedents. It does so because most justices agree with Felix Frankfurter that a the ultimate Touchstone of constitutionality is the Constitution itself and not what we have said about in the Michigan and Tennessee cases the courts conservative majority read the Constitution in a Way a a strictly that caused the court to defer to the discretion of democratic institutions a the Michigan. And Tennessee Legislatures. Many liberals lament the moderately conservative balance today being struck regarding a perennial conundrum of America s constitutional democracy that of reconciling constitutional supremacy and hence judicial review with majority Rule. Today a Liberal laments Are puzzling. The More Liberal party,.the democratic controls both houses of Congress and most state legislative Chambers. Furthermore a heavy preponderance of what the court does is statutory not constitutional interpretation. Sen. Patrick Leahy d-vt., a member of the judiciary committee that will consider confirmation of Clarence Thomas has a Peculiar and peculiarly Liberal no Tion of the court s function. On television last sunday after he repeatedly stressed the importance of the court in protecting individual rights he was asked if Community rights As expressed through state and Federal Laws Are also due some deference and Protection. Leahy replied a you elect people to make those Community rights. The supreme court protects individual actually our constitutional dilemma is not so simple. It involves the court on All sides of unending indeed Une Dable tensions Between Many competing values and Powers. The coming debate about Clarence Thomas confirmation will discomfort conservatives too. Some conservatives Are flying intellectually on automatic Pilot doing Well if not Good by tickling the country a anti government reflex. They must face the fact that the a strict construction they Praise has the consequence of broadening the reach of government Power. C the Washington pos Tanna Quindle tying background of murder to penalty unwise of All the questions we get asked in the newspaper business perhaps the most Slippery is the definition of news. The Wise Guy answer a a i know it when i see it a does not suffice. But in fact it is the closest thing to the truth. Readers know it when they see it May ask Why it is of particular interest when a female violinist is murdered on the roof of the metropolitan opera House and Why it is not when a decomposing body is found in an abandoned building but intuitively most know the answer. In a City in which there Are on average six homicides each Day the ones that get More than a paragraph tend to be the killings in which the event is unusual or the victim compelling. In the measure of column inches their deaths Are Given More weight. If i have always had a vague unease about measuring the attributes of the dead before assigning a length to their stories i am powerfully disturbed about doling out punishment to their killers in a similar Way. The supreme court in a reversal of its earlier rulings said last week that juries that Are deciding on the death penalty May consider the victims character and the effect of the victims death on others in deciding whether a murderer will be executed. I fear that they have sanctioned a system of comparative Worth for the slain. The Case in question is exactly the sort of Story that winds up on Page one. Charisse Christopher the Young Mother of two toddlers was murdered with a Butcher knife. Her daughter was also killed. Her son survived. The boys grandmother testified that Nicholas cries for his Mother and his Little sister that he sometimes says of the latter a a in a worried about my the court had to consider whether such testimony during the penalty phase unfairly influenced the jury which sentenced the killer to death. If it had not influenced the jurors they must All have been made of Stone. Several years ago i spent some time with a group of parents of murdered children. There is one thing you Are certain of after you be listened to their stories and that is that you have just had a glimpse of a special Circle of hell. A woman from that group said the other Day that she was delighted by the courts decision. A everything before was for the criminals a she said echoing a sentiment that has become a constant refrain in this country. A somebody had to stand up for the i know people find it painful when the murder of their child receives no publicity and the murder of someone else a is mourned in a Long feature Story. How doubly hurtful to discover that the murder of a rootless son might be considered inherently less worthy of punishment than the murder of an accomplished daughter. It puts me in mind of civil cases that seek damages for wrongful death. The family of the 30-year-old surgeon May receive millions based upon future earning capabilities. The parents of a child whose Promise was a plumbed May Settle for much much less. The system explicitly assesses How much a life is Worth. Now the system of sentencing a killer to death can do something similar. There Are those who Hail it As a Victory for victims giving them a human face. And any smart prosecutor already seeks to do that to make the dead live again in the courtroom a within the limits of judicial discretion. But shifting the focus of the penalty phase in capital cases from the murder to its victim implicitly invites jurors to do something More than humanize. I fear the result will be to Render some victims less worthy than others even if the pain their murders have caused reverberates As strongly for the family of a put a it a pregnant teen Ager As it does for the family of a privileged medical student. I fear that some crimes will be adjudged human interest murders worthier of Stop the presses penalties. C the new York times
