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Bonus points to Mr. Stone for stepping up to the plate and swinging mightily at some of our pitchers' best curves, fastballs and sliders. Does anyone think he connected? | |||
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quote: Replace the word "liberal" with "conservative" and the words "death penalty" with "abortion" and you get: I have observed over the years that conservative advocates such as abortion opponents are relentless in their pursuit of total victory. They are compelled by their misplaced sense of compassion. They are zealots, and as such, are never satisfied with partial victories and compromise. Total victory in this case is a total ban. I expect them to use every possible avenue, including the Court to accomplish the goal. --------------------- [edit: inserted clarification] A zealot is a zealot no matter what side of the fence. The following will probably convince some people that I am a zealot: Perhaps we need a new word for capital punishment. It isn't really punishment in the sense that it doesn't seek to change the killer's behavior. I think maybe we should call it extermination or maybe sanitation. That might sound a little harsh but call a spade a spade. I have no problem killing millions of dangerous germs with a can of Lysol... and only PETA members would argue with killing a rabid dog. A germ or a rabid dog will potentially hurt someone. A killer has definitely done so, and even a retarded one has more capability of malice than a dog or a germ. If it isn't punishment we don't have to worry about it being cruel & unusual. ------------ Side note about insanity: The decision to kill someone for any reason other than self-defense is not a sane decision. Normal people may fantasize about killing that no-good-so-and-so but they don't actually DO it! Anyone that does has made an abnormal decision. Society still needs to be protected. Society is still perfectly justified in its outrage. Society can fetch its can of Lysol. | |||
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From one of my favorite columnists, Jeff Jacoby: A phony 'consensus' on youthful killers By Jeff Jacoby, Globe Columnist | March 6, 2005 NOW THAT the Supreme Court has rendered its decision in Roper v. Simmons, the debate over capital punishment for murder committed by juveniles is closed. In the 20 states whose laws didn't previously rule out the death penalty for juvenile killers, the laws will be changed. Around the country, 72 convicted capital murderers who were not yet 18 when they committed their crimes are being removed from death row. When the Supreme Court speaks, the legal system falls in step. The United States has not reached anything like a settled view on this subject, but that no longer matters. Five justices have declared that the Eighth Amendment's ban on ''cruel and unusual punishment" forbids the execution of murderers who were juveniles when they killed. And that, under our system, is that. A good thing? Not when it comes to an issue on which public opinion is as fluid as capital punishment. The Roper majority purported to ground its ruling in the nation's ''evolving standards of decency," which it says have led to a ''national consensus" against the execution of juvenile murderers. Even if there were such a consensus -- and there clearly is not -- there is no reason to believe that it is chiseled in granite. But by deciding that public opinion has moved decisively on this question, then grafting that decision onto the Constitution, the court has stripped lawmakers of the right to someday change their minds. Yet when has legislative support for capital punishment ever been static? As Justice Antonin Scalia notes in his dissent, it ''has surged and ebbed throughout our nation's history." In the years after World War II, for example, there was a dramatic fall-off in executions, as many states went through a phase of abolishing or restricting capital punishment. For several years beginning in 1968, in fact, executions came to a halt. By the logic of the Roper majority, the Supreme Court could have declared back then that ''evolving standards" had reached a ''national consensus" in favor of eliminating the death penalty once and for all. In hindsight, we know that any such declaration would have been ludicrous -- within a few years, support for the death penalty had soared. ''But had this court then declared the existence of such a consensus, and outlawed capital punishment," wrote Justice Sandra Day O'Connor in a 1988 opinion quoted by Scalia last week, ''legislatures would very likely not have been able to revive it. The mistaken premise of the decision would have been frozen into constitutional law." Of course, standards of decency do evolve. There are punishments, once common, that a true national consensus now firmly rejects -- public flogging, debtor's prison, the stocks. But the court's evidence for a consensus against the death penalty for those who murdered before their 18th birthday is pitifully thin. In recent years, it notes, executions of juvenile murderers have been few and far between, and five states that used to allow it no longer do. That's a ''national consensus"? Executions of any murderers are few and far between -- of the more than 15,000 homicides committed each year, no more than a few dozen result in a death sentence. And if five states recently raised their death penalty age to 18, four other states, as the dissent points out, recently set theirs at 16. The bottom line hasn't changed: Fewer than half of the states that permit capital punishment restrict it to killers who were 18 or older. It is hard not to conclude that five justices ruled capital punishment of juvenile murderers unconstitutional simply because they personally oppose it. Their arguments are the familiar ones: Juveniles tend to be more immature and irresponsible than adults, they are more susceptible to bad influences, their character is less well formed. All obviously true -- as a rule. But just as obviously true is that there are exceptions to the rule. The average 17-year-old criminal may be less culpable than the average adult criminal, but who would deny that some 17-year-olds can act with depravity and ruthlessness far beyond their years? The 17-year-old in Roper v. Simmons, for example, who bragged in advance that he could commit murder and ''get away with it" because of his age. He and his accomplice broke in on Shirley Crook in the middle of the night, hog-tied her with duct tape and electrical wire, then threw her off a bridge, still conscious, to a terrifying death in the river below. Youthful savages like Simmons may be rare, but they exist. Nothing in the Bill of Rights requires us to pretend otherwise. In almost every state, 16- and 17-year-olds can be treated as adults when it comes to noncapital crimes -- up to and including homicide. Whether capital murder should be an exception is certainly a debatable issue. It should never have been a constitutional one. | |||
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(washingtonpost.com) Wrong on All Counts By George F. Will Sunday, March 6, 2005; Page B07 In 1992, before delivering the Supreme Court's ruling in an abortion case, Justice Anthony Kennedy stood with a journalist observing rival groups of demonstrators and mused: "Sometimes you don't know if you're Caesar about to cross the Rubicon or Captain Queeg cutting your own tow line." Or perhaps you are a would-be legislator, a dilettante sociologist and a free-lance moralist, disguised as a judge. Last Tuesday Kennedy played those three roles when, in yet another 5-4 decision, the court declared it unconstitutional to execute people who committed murder when they were under 18 years old. Such executions, it said, violate the Eighth Amendment proscription of "cruel and unusual" punishments because. . . . Well, Kennedy's opinion, in which Justices Stephen Breyer, Ruth Bader Ginsburg, David Souter and John Paul Stevens joined, is a tossed salad of reasons why those five think the court had a duty to do what state legislatures have the rightful power and, arguably, the moral responsibility to do. Although the court rendered an opposite decision just 16 years ago, Kennedy says the nation's "evolving standards of decency" now rank such executions as cruel and unusual. One proof of this, he says, is: Of the 38 states that have capital punishment, 18 bar executions of those who murder before age 18, five more than in 1989. So he constructs a "national consensus" against capital punishment of juvenile offenders by adding a minority of the states with capital punishment to the 12 states that have decided "that the death penalty is inappropriate for all offenders." But "inappropriate" is not a synonym for "unconstitutional." Kennedy simply assumes that those 12 states must consider all capital punishment unconstitutional, not just wrong or ineffective or more trouble than it is worth -- three descriptions that are not synonymous with "unconstitutional." While discussing America's "evolving standards of decency," Kennedy announces: "It is proper that we acknowledge the overwhelming weight of international opinion against the juvenile death penalty." Why is that proper when construing the U.S. Constitution? He is remarkably unclear about that. He says two international conventions forbid executions of persons who committed their crimes as juveniles. That, he thinks, somehow illuminates the meaning of the Eighth Amendment. Kennedy evidently considers it unimportant that the United States attached to one of the conventions language reserving the right "to impose capital punishment . . . for crimes committed by persons below eighteen years of age." The United States never ratified the other convention Kennedy cites. Kennedy the roving moralist sniffily disapproves of that nonratification as evidence that America is committing the cardinal sin of being out of step with "the world community." Kennedy the sociologist says "any parent knows" and "scientific and sociological studies" show that people under 18 show a "lack of maturity" and an "underdeveloped sense of responsibility" and susceptibility to "negative influences" and a weak aptitude for "cost-benefit analysis." All of this means, he says, that young offenders "cannot with reliability be classified among the worst offenders." Well. Is it gauche to interrupt Kennedy's seminar on adolescence with some perhaps pertinent details? The 17-year-old in the case the court was considering bragged about planning to do what he then did: He broke into a woman's home, put duct tape over her eyes and mouth, wrapped her head in a towel, bound her limbs with electrical wire, then threw her off a railroad trestle into a river where, helpless, she drowned. Justice Antonin Scalia, joined in dissent by Justices William Rehnquist and Clarence Thomas (Justice Sandra Day O'Connor dissented separately), deplores "the new reality that, to the extent that our Eighth Amendment decisions constitute something more than a show of hands on the current Justices' current personal views about penology, they purport to be nothing more than a snapshot of American public opinion at a particular point in time (with the timeframes now shortened to a mere 15 years)." Kennedy occupies the seat that 52 Senate Democrats prevented Robert Bork from filling in 1987. That episode accelerated the descent into the scorched-earth partisanship that was raging in the Senate Judiciary Committee at the very moment Tuesday morning that Kennedy was presenting the court majority's policy preference as a constitutional imperative. The committee's Democrats were browbeating another appellate court nominee, foreshadowing another filibuster. The Democrats' standard complaint is that nominees are out of the jurisprudential "mainstream." If Kennedy represents the mainstream, it is time to change the shape of the river. His opinion is an intellectual train wreck, but useful as a timely warning about what happens when judicial offices are filled with injudicious people. | |||
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COMMENTARY Whose Constitution Is It Anyway? The execution of minors shouldn't ride on the justices' personal whims. By Douglas W. Kmiec (Douglas W. Kmiec is a professor of constitutional law at Pepperdine University) March 6, 2005 The problem with the U.S. Supreme Court's decision last week banning the execution of minors is that it was based, when you get right down to it, only on the personal beliefs of five justices and buttressed by the opinions of people who live in other countries. That's no way for the court to decide. Supreme Court rulings must be based on the Constitution, not on what the justices believe or on the vagaries of "world opinion." The court's decision fans the flames of a long-standing dispute over how the Constitution is to be viewed. Should it be treated as an enacted law � that is, something to be fairly interpreted and evenhandedly applied � or is it an open-ended document for the court to interpret as it sees fit? The first methodology is democratic self-government; the second � in which an elite body is invited to impose binding pronouncements about how the rest of us are to live � is something else. We all have keenly felt personal opinions. As a Catholic, for instance, I accept the teaching of the church that capital punishment ought to be rarely, if ever, employed. But although religion, philosophy and the positions taken by the United Nations General Assembly should all be part of the public debate in our legislative assemblies, they cannot simply be asserted as constitutional law. A jurisprudence that was truly faithful to the Constitution would begin by inquiring whether a particular punishment was considered cruel and unusual in 1789, when the 8th Amendment was added by popular ratification. Based on a consideration of the practices of the time, as well as the commentary of such legal luminaries as Sir Matthew Hale and Sir William Blackstone, the court would have to conclude that juvenile execution was not off limits except possibly for extremely young children beneath the age of reason. But the court did not trouble itself with original meaning. That's because in the late 1950s, when the court was led by former California Gov. Earl Warren, the justices threw out the original understanding that the Constitution has a textual meaning in favor of the idea that the document can be reinterpreted according to the "national consensus." Presumably, this keeps the Constitution up to date so that we're not all living under anachronistic 18th century laws. But the framers never intended the country to be bound by antiquated thinking; they just thought that the best way to keep things up to date was for the people themselves to do it by passing laws and, occasionally, amending the Constitution. It was not up to judges to change constitutional meaning. What's more, the court is not very persuasive on the question of what the "national consensus" really is on the juvenile death penalty � or if there really is a consensus at all. In fact, the issue is a controversial one, which suggests why, of the states that permit capital punishment, only about 47% prohibit execution for offenders under 18. How does 47% express a national consensus? The same way numbers can always be manipulated. Mix in 12 states that prohibit capital punishment altogether, and voila, national consensus. Only one problem: All of those dozen states allow (and some even require) juveniles over 14 to be tried as adults, thereby undercutting the argument that the states as a body have reached a consensus on the "culpability" of the young or on whether they lack the capacity for considered judgment. In the case at hand, Christopher Simmons brutally tied up his victim and pushed her from a bridge to drown, and he smugly bragged that he could "get away with it" because he was a minor. The notion that he did not grasp the gravity of his crime is ridiculous. The court relied on two other authorities in reaching its decision: social science and world opinion. The first is not definitive. As Justices Antonin Scalia and Sandra Day O'Connor pointed out in their dissents, the court's studies can be easily refuted by other studies, because no study holds that all juveniles under 18 are unable to take moral responsibility. That's why we ask juries to do individualized assessment � so that the punishment will fit the crime and the criminal. The second � world opinion � is inappropriate in this case. The notion that American law ought to conform to international law is a benign, even alluring, premise. After all, the framers appealed to universal principles in establishing the United States as a nation. But as sound and important as that universality can be up to a point, the fact is that American law is not the same as world law, and we wouldn't want it to be. There are, for example, some distinctly American rights to which the world community as a whole does not subscribe, but which we would not want to give up: the right to a jury trial, the process of grand jury indictment, and the suppression of illegally seized evidence, to mention just three. Britain rarely excludes evidence found during an illegal search. Does that mean we shouldn't either? Of course not. It may well be time for the juvenile death penalty to be set aside, because it was long ago that we declared an "inalienable" right to life. But to be done constitutionally, it must be accomplished "by the people," not by five Supreme Court justices by assertion. | |||
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So, Shannon, what is Texas to do? Do we leave our law as it is--thereby allowing prosecutors to enforce Simmons in their decisions to seek or not seek the death penalty? Or do we jump on one of these "fast track" bills amending the statute to increase the minimum age for the death penalty to 18? If you follow the reasoning of Justice Kennedy in Simmons, our "evolving standards of decency" may very well evolve back to a "consensus" of support for executing persons younger than 18. As we've disussed on this forum before, especially heinous crimes have a tendency to polarize public opinion in a pro "law and order" fashion. In my humble opinion, all it would take is another Columbine type of shooting, or something similar to the Ertman/Pena gang rape/murder, and the public would be clamoring for "justice." If we leave our law the way it is, what would stop a Texas prosecutor from taking a poll, determining that the national consensus had swung back in favor of the death penalty in such a case, and seeking death? Moreover, what would stop the Texas Court of Criminal Appeals from reaching the same conclusion. The Missouri Supreme Court in Simmons has already demonstrated that it can rebel against U.S. Supreme Court precedent without adverse consequence. Why can't it work both ways? | |||
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1. I find puzzling the assertion that a decision outlawing capital punishment for those younger than eighteen years of age is somehow an "expansion of individual rights." 2. If it is cruel and unusual to execute those under eighteen because of some cognitive deficit inherent to that age, namely the inability to appreciate the gravity of their actions, how can it be less cruel or unususal to sentence them to life in prison? The Challenge: For anyone who believes this opinion is well-reasoned and intellectually honest, please answer Scalia's dissent. You might begin by refuting his argument that for the first time the majority combines non-death penalty states with those that limit capital punishment to murderers who are older than eighteen years of age in an attempt to cobble together a national concensus. Never before had states with no death penalty been included in the equation. Of course, without non-captal punishment states in the mix, "concensus" evaporates. [This message was edited by BLeonard on 03-07-05 at .] [This message was edited by BLeonard on 03-07-05 at .] | |||
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Lee, I'm just venting by proxy. I'm upset about the result, but I'm more upset about the means to get there. Each of those articles pointed out why this is a scary decision, and in ways much more eloquent than any I could muster. That's all. | |||
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OPENING ARGUMENT The Court, And Foreign Friends, As Constitutional Convention By Stuart Taylor Jr., National Journal � National Journal Group Inc. Monday, March 7, 2005 The idea of putting a person to death for a murder committed at age 17 or younger strikes many of us as grotesque. So it may seem fitting that five Supreme Court justices held on March 1 that juvenile executions violate "the evolving standards of decency that mark the progress of a maturing society" -- the touchstone since 1958 for determining whether punishments are unconstitutionally "cruel and unusual." Justice Anthony Kennedy's opinion for the majority gives six cogent-sounding reasons for this judgment: 1) The trend in state legislatures has been toward ending juvenile executions. 2) Only six states have executed someone convicted as a juvenile since 1989. 3) Juveniles are less calculating than adults and thus less likely to be deterred by fear of death. 4) Juveniles' crimes tend to be less "morally reprehensible" and less indicative of "irretrievably depraved character" because they are less mature and have a less developed sense of moral responsibility. 5) Emphasizing the Court's assertion three years ago that "in the end, our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment," Kennedy declares his personal view, joined by four others, that juvenile executions should be banned. 6) "The United States now stands alone in a world that has turned its face against the juvenile death penalty," with all other nations having officially ended the practice. All of this is good enough to convince me that we should end juvenile executions. So why did four justices dissent in the case, Roper v. Simmons? Because they were right to oppose ending juvenile executions by judicial fiat. The dissenters shred each of the majority's six arguments: 1) A trend that 20 of the 38 death-penalty states have declined to join is far from being the national "consensus" -- the traditional measure of "evolving standards of decency" -- that Kennedy claims it is. Indeed, just 16 years ago, the Court upheld the death penalty for 16- and 17-year-old murderers, in Stanford v. Kentucky. While four more state legislatures have ended juvenile executions since then, for a total of 18, that's not even a majority of the 38, let alone a "consensus." Kennedy pads his bogus "consensus" by adding to these 18 states the 12 others that have entirely abolished the death penalty. But none of the 12 suggested that juvenile killers should be ineligible for the maximum penalty faced by adult killers. 2) The number of juvenile executions has held steady or even gone up since Stanford. And their infrequency reflects only the facts that most murderers are adults and that capital juries are instructed to consider youth as a mitigating factor. 3) The defendant in this very case, Christopher Simmons, showed how calculating a juvenile killer can be. He told friends he wanted to murder someone; planned to break into a house, tie up his victim, and throw her off a bridge; and he assured accomplices that they "could get away with it" because they were juveniles -- a prediction now partially validated by the Court. On entering his victim's bedroom and recognizing her, Simmons bound and gagged her with duct tape, took her to a railroad bridge, tied her hands and feet with electrical wire, and threw her into the Meramec River. 4) As further evidence of his moral depravity, Simmons bragged to friends that he had killed "because the bitch seen my face." The defense lawyer, stressing that, under state law, Simmons was too young to drink, serve on a jury, or see certain movies, argued that he did not deserve death. The jury disagreed. Some of the mental-health experts who successfully urged the Court to find that juveniles lack the moral-reasoning ability to be held responsible for murder have made inconsistent arguments in past cases. When the issue was whether minors should have access to an abortion without parental involvement, the American Psychological Association asserted that girls as young as 14 "develop abilities similar to adults in reasoning about moral dilemmas." 5) It is presumptuous and anti-democratic for five life-tenured lawyers to appoint themselves the nation's moral conscience and to look inward -- rather than to elected representatives, voters, juries, or the Constitution itself -- to discern the nation's "evolving standards of decency." Especially when the justices' own moral consciences are so malleable. The same Kennedy who authored Simmons had joined Scalia's 1989 ruling that nothing in the Constitution forbids juvenile executions. As Scalia stresses, Kennedy's explanation for this reversal is "not, mind you, that this Court's decision 15 years ago was wrong, but that the Constitution has changed." This brand of "interpretation" mocks Alexander Hamilton's injunction in Federalist 78 that the judiciary -- the "least dangerous" branch -- should be "bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them." 6) One key to understanding the Court's reliance on international and foreign law, laid out in friend-of-the-court briefs by the European Union and several foreign countries, may be the justices' summer sojourns to glittering international conferences. They may be embarrassed by their foreign friends' concern that America seems so indifferent to world opinion -- so barbaric, even. I might be embarrassed too. But should the meaning of our Constitution be determined -- and should democratic governance be set aside -- by what Scalia calls "the subjective views of five members of this Court and like-minded foreigners"? And if international standards are to be our guide, what of the facts that -- by decree of the Supreme Court -- the United States alone broadly bars prosecutors from using illegally seized evidence; is one of only six countries to allow abortion on demand until the fetus is viable; and is quite exceptional in requiring strict separation of church and state? What of the fact that the United Nations Convention on the Rights of the Child, which the Court cites approvingly for its ban on executing juveniles, also bans sentencing them to life without parole -- a penalty that all, or almost all, 50 states authorize and that Kennedy cited with approval. By the way, the United States has refused to ratify that convention, except to the extent that the Court has now implicitly arrogated the treaty-ratification power to itself. But should the meaning of our Constitution be determined -- and should democratic governance be set aside -- by what Scalia calls "the subjective views of five members of this Court and like-minded foreigners"? The subjectivity of the justices' "independent judgment" is also underscored by Kennedy's side debate with Justice Sandra Day O'Connor's separate dissent. She agrees with the majority's interpretative method, its internationalist bent, and its 2002 precedent in Atkins v. Virginia (which she joined) banning execution of mentally retarded murderers. But 16- and 17-year-old murderers should not enjoy the same constitutional protection, O'Connor asserts in Simmons, while suggesting that she would welcome a statutory ban on juvenile executions. Why? Because there is "continuing public support" for juvenile executions and because "at least some 17-year-olds" may deserve death. Kennedy, on the other hand, stresses that the impropriety of the juvenile death penalty "gained wide recognition earlier than the impropriety of executing the mentally retarded." Scalia's own "purely originalist approach" (as he describes it) has its problems, however. Scalia would uphold any punishment deemed constitutional at the time of the Framers, leaving it to elected officials to discern "evolving standards of decency." That would make the Eighth Amendment a dead letter. When it was adopted, children as young as 7 could be executed, among other punishments now universally deemed barbaric. So the Court must draw a line somewhere to designate how young is too young for the death penalty. In 1988, it drew a more defensible line, over Scalia's dissent, in Thompson v. Oklahoma, holding that killers 15 years old and younger should not be executed. But in its impatience with 20 states' current unwillingness to draw their own legal lines where it (or I) would like, the current Court majority has assumed the power to act essentially as a continuing constitutional convention. And not only in the death-penalty context. "It seems inevitable," editorialized The New York Times, "that, one day, Americans will look back on this latest narrowing of the categories of people eligible for execution as another intermediate step toward the Court's entire rejection of the death penalty." Oh, good. I don't like the death penalty, either. And if the voters in the 38 death-penalty states remain too benighted to do the right thing themselves, what standing do they have to second-guess the "evolving standards of decency" decreed by five moral guardians and the world's greatest newspaper? | |||
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In response to Lee's challenge, would it be a violation of equal protection to have a life w/o parole option for the under-18 and MR capital offenders? I don't think that actual release on parole is a realistic probability for these guys, but if it ever happens, boy, watch how the "national consensus" will reverse course . . . | |||
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BLeonard beat me to it, but I think it bears restating. Shouldn't the juveniles on death row be released? After all, if the poor dears are not sufficiently morally culpable due to immaturity, isn't it cruel and unusual to imprison them for the rest of their lives? | |||
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The last post might have been written sarcastically. But, bad opinions have a way of being constantly extended. That happens when there is no limiting principle. So, why can't Roper v. Simmons be extended to mean that we can't punish juveniles, even with long confinement? To read about a group of lawyers seeking to make that argument, read this article. Will it work? | |||
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This slippery slope began with the Atkins decision when the justices substituted their personal, moral preferences for the Constitution and legislative bodies. Roper was a predictable extension of Atkins. And as JB says, this is a predictable extension of Roper. This is another example of how much damage can be done by 1 poorly-reasoned, ends-justify-the-means opinion. And take heart, this latest effort to redefine the Eighth Amendment is being done at your taxpayer-supported, state university. | |||
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Anyone catch the photo they put up with that article? The one with the young killer AND HIS VICTIM? Here it is: According to the article, this was taken approx. four years before young Mr. Pittman killed the grandfather pictured in this photo with him. So, not only do they use a purposefully unrepresentative picture of the perpetrator to make him look younger than he actually was at the time of the crime, but they show him with his victim, who has no say in how his image gets used -- or misused. What gall these people have. What gall. Personally, I'm not offended if the people of So. Carolina choose to punish violent acts in this manner, nor am I concerned that Texas law does not provide for such punishment for 12-year-olds. | |||
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quote: The next battleground: Life sentences for juveniles It seems that the prevarications continue ... | |||
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"UT Law and public policy students have shown that they are able to make serious contributions in the most sophisticated litigation in any court in the country," said Larry Sager, dean of the School of Law. I think this is what bugs me about student participation in these kinds of cases. For some it's not about justice, it's just a way to get into the game. | |||
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