Of Responsibility and Deterrence

Long time ago, when I was young and dumb and didn't know my derriere

from a hole in the ground, I got pinched - if that is the word - for

drunk driving. It wasn't exactly stellar detective work on the part of

the cops - I was pried out of my car, after having totaled a pickup

parked on the side of the highway, and was given a lift by a sort of

taxicab service, the EMT squad, to what passed for a hospital in our

rural area. After three weeks of reflection, I was duly summoned into

the local town court, where the Justice of the Peace - who wasn't a

lawyer, he was a friend of a friend and worked days as the School

Custodian - laid down his options.

I was to lose my license for six months. And he could fine me a

hundred bucks - big money in the days of Jimmy Carter and 100 percent

unemployment, for yours truly - or he could send me off to Driving

School. Being impulsive, and not well schooled in the ways of

government, I opted for school.

The Honorable Justice favored me with a grin, and adjourned. Two weeks

later, the the copious paperwork completed, he turned it over for my

signature. "Oh, and I'll need $260 from you."

"Jeez, Al," (that's how he was addressed in his court) I don't have

that kind of money."

The Honorable Al wasn't put out at all. He flashed the smirk which

made him popular with the high-school kids and tossed the paperwork in

his floor-mounted rotary file. "Well, kid," he said, "just don't get

caught."

I'd like to tell you that that little episode was a turning point in my

life...but I'd be lying if I did. I proceeded to carry on, in three

different states, even racking up some more (mercifully minor) fender-

benders and incidents and close calls. What put the fear of God into

me was something else.

It was a friend...a drinking buddy, actually. On the way back from the

watering-hole our office used every single night of every single

workday, he with his lady friend of the moment, another employee,

driving her car, rolled it on the interstate and had to be cut out of

the shell. Sorta like did I, some time earlier.

The legal establishment wasn't so kind, at that point. The MADD

lobbying campaign had borne fruit, and DUI had become "criminalized."

He, my friend, passed on the protracted stay in Intensive Care in favor

of a week in the county jail, frantically trying to arrange

bail. And come his court date, it wasn't any benign janitor who liked

kids, hearing cases. It was a local legend, the Honorable

Robert "Stick-em" Niccum.

My erstwhile drinking buddy was assessed $1200 and costs, and

restitution to the Buckeye State for repairing the guardrail and torn-

up grass in the median strip. And that, to me, was a message: Party's

over. Time to grow up.

Moral: Swift, severe, certain punishment is a deterrent.

All of this comes back to me in reading of the other day's Supreme

Court ruling in Roper v. Simmons. The Honorable Court, in a 5-4 majority,

addressed the moral and ethical implications of holding juvenile

defendants against the ultimate penalty for horrific crime. It spoke

of a "consensus" it sees, measuring states which choose not to do so

against those which do. It spoke of children who cannot be made to

bear responsibility for the consequences of their actions; and it

invoked the sensibilities of European and other nations - not including

Ba'athist Iraq, lately famous for its kiddy-prisons - who profess

opposition to such Draconian punishment for mere children of

seventeen.

Glossed over in this ultimate example of sophistry was the deterrent value of

punishment - not threatened punishment, not suspended sentences, not

counseling and warning - but PUNISHMENT.

The reasoning, such as it was, was threefold: That certain justices saw a �national consensus� opposing capital punishment on �youthful offenders� (virtually all of which have or will have reached adulthood before sentence is carried out); that certain other nations disapprove of capital punishment for juvenile offenders (or any others); and that the �deterrent value� is somehow lessened because a juvenile, like a retardate, is not fully able to take responsibility for the results of his actions.

That last, especially, is bad reasoning on bad judgment on flawed premises.

The argument surfaces, periodically, of whether the penal system is to focus on �rehabilitation� � or merely punishment. But capital punishment is not about rehabilitation � not in the sense the term is used by liberal social engineers. Capital punishment is, first, to remove a threat � permanently; and then to stage a morality play.

The defendant is placed on the gallows � and society announces: �This man screwed up. Anyone who behaves as he did, will be dealt with as he is.� The trapdoor opens; and the audience is instructed.

It matters not of the social status or color or SAT or IQ scores of the defendant. His culpability was established in a trial of his peers � as is guaranteed by our system.

One can argue at what age a person is able to accept adult responsibilities, true. For many areas of life, we use the arbitrary cutoff, age 18. But it�s not hard and fast; an adolescent can work and drive at 15 or 16; he can care for young children, working as a babysitter, much younger than that, even. Conversely, he cannot drink until he�s 21, and cannot be elected to Congress until age 25.

But obedience to the law�that is the duty of every citizen, no matter his age. Toddlers are spanked for breaking household rules, and while Juvenile Court is a joke of leniency, a lawbreaking child will at least be called to account.

But it�s hard to make a case that a 16- or 17-year old cannot take responsibility for his or her actions. And for years, many of the same people who oppose capital punishment for young (or any other) offenders have worked to allow adult decisions to be made by persons under 18.

Many of these same people have fought tooth-and-nail the Parental-Notification stipulations in abortion law, for example. A teenage girl is presumably adult enough, cognizant enough, to make the decision of life or death for the unborn child she so recklessly conceived.

In California, at least, forces are at work to extend voting rights to �citizens� under age 18. These persons are presumed, in that argument, to be mature enough to make decisions about public policy and to choose who would make the better choice to direct public policy � a decision with drastic, long-range implications for our society.

Yet, on account of their age, they are not to be held to an understanding that a planned, elaborate revenge-slaying is so vile, so repugnant, that it can and must put their life in forfeit.

In the context of the day, this is baldfaced, tortuous after-the-fact rationalization. Using this reasoning, it is only a matter of time until lesser crimes, committed while the perp is on the short side of the magical number 18, are mitigated�excused�literally decriminalized.

And this is where the �deterrence� value disappears. When punishment is certain, there�s little likelihood a would-be murderer is going to follow through on his impulses. When the legal system starts softening, starts mitigating based on age and other irrelevancies, even if in only some cases � then it becomes a crap shoot.

There are people who like taking risk � more so when they�re young.

The other rationales are similarly vapid. Justice Kennedy pretended to find a �national consensus� opposing the death penalty on juveniles. He cites the �30 States (that) prohibit the juvenile death penalty�12 that have rejected the death penalty altogether and 18 that�exclude juveniles from its reach.� But what he�s doing is taking the twelve that have chosen, rightly or wrongly, to eschew capital punishment, and adding them to the eighteen which have, again, rightly or otherwise, exempted juveniles from its reach. This includes states where capital specifications can only be added to specific acts, such as killing law enforcement officers.

This is scarcely a �national consensus.� And what if it is? Those states have made their choices. Those choices are no more binding on Missouri, than is Missouri�s choice to uphold capital punishment is on other states.

And finally, to add insult to injury, Justice Kennedy reaches, not to the United States Constitution or to American case law, but to British acts of Parliament, proscribing capital punishment for children. I do not know what relevance European law has on our own criminal jurisprudence; I DO know our nation was founded, and our Constitution written, to correct very basic wrongs in the European rule of the Colonies.

A War of Independence was fought to separate our society from European legalities. A Supreme Court opinion has been written to subjugate Missouri to those same sensibilities.

But as with so many other activist Supreme Court rulings, the reasons given are the �good� reasons. As with Roe v. Wade, the ruling here was outcome-based: The USSC started with its decision to overturn the Missouri court, and justified it with contorted, tortuous reasoning.

But in their haste to find Constitutional grounds for disqualifying feral young offenders for the ultimate punishment, the Supreme Court has overlooked one other, quite relevant section. Article III, Section I, to wit:

�The Judges, both of the Supreme and inferior Courts, shall hold their Offices during good Behavior��

This may well be a wake-up call to Americans who tire of an Imperial Court ruling with liberal precepts issued by judicial fiat.

Indianapolis, Indiana

March 5, 2005

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An itinerant blue-collar worker, JustPassinThru writes his opinions on politics and the state of life � carrying on a tradition of barbers and taxi-drivers the world over.

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