Another Small 'Victory' In The Death Penalty Struggle

Commentary

Forgive me if I accuse the august justices of the United States Supreme Court (at least those who have been able to move beyond 1791 on a legal decision) for having severe cases of schizophrenia. Or, in any case, they should be subjected to analysis for that possibility. Several weeks ago the Court, by a 7-2 decision (including some of the majority in this child rape death penalty case commented on here), agreed that the current manner of administration of the lethal injection used by most states that have the death penalty on their books did not offend against the cruel and unusual punishment clause of the American Constitution. Moreover, there were so many opinions issued, as each justice tried to parse his or her way through that legal thicket, that I feared for the paper supply at the Court.

Now, on Wednesday June 25, 2008, the Court, by a 5-4 decision, has held that those states that permit the death penalty in cases of child rape without the murder of the victim cannot impose the death penalty for such actions. In the Justice Kennedy-authored opinion the majority found that, heinous as this crime may be, without more this is cruel and unusual punishment. (Kennedy also authored the majority opinion in the Guantanamo detainees federal courts access decision last week. His law clerks must be working overtime these days as he tries to atone for his many legal sins committed over the last several years.) This decision is in line with an attempt by a least a few members of the court to limit the scope of the death penalty without actually abolishing it. Other cases in recent years include forbidding the execution of mental incompetents and minors.

When I commented on the Guantanamo case I mentioned that such a decision is a victory, if a small one, for us. This child rape decision is a ‘victory’ in that same sense. Nobody feels anything but contempt for a child rapist. Nasty little factual aspects of cases like these cause one to gulp when we use the word ‘victory’ here. Nevertheless to the extent that we are unable today to eliminate the state’s ability to impose the death penalty- our ultimate goal- then anytime a legal decision reins in that capacity it is a victory. Not in the way that we would claim a victory if Mumia Abu Jamal, for example, was freed- a case of a wrongly convicted innocent man that we are conspicuously trying to fight and win and have put resources into- but I think you get the drift of my comment. Really though, the best way to insure a real victory for our side (and get rid of some of the underlying causes of these ugly child rape cases in the world), is not to depend on the good offices of Justice Kennedy or any other Justice to rein in the death penalty, but to create a workers party that fights for a workers government.