Clarence Thomas Speaks!

In late June, The Supremes upheld a Kansas death penalty law allowing requiring the death penalty when jurors are evenly split on the issue. As the Chicago Tribune notes,

The ruling overturns a Kansas Supreme Court decision that found the law violated the 8th Amendment's protection against cruel and unusual punishment. Supporting Thomas, in addition to Alito, were Chief Justice John Roberts Jr. and Justices Antonin Scalia and Anthony Kennedy.

The Tribune noted further that

Justice David Souter, writing for the court's liberals, said the law would lead to death sentences in doubtful cases and "is obtuse by any moral or social measure."

In response, the Christian Science Monitor reports Justice Thomas as stating that

"This court, however, does not sit as a moral authority."

So we have Kennedy, the so-called "liberal" Justice presupposing that the Supremes may make moral decisions and Thomas asserting that they must not.

Over a year ago, according to The Washington Post, Justice Kennedy wrote in the majority opinion of a 5-4 decision outlawing the death penalty for those who are under 18 when they commit a death penalty crime, that

"From a moral standpoint, it would be misguided to equate the failings of a minor with those of an adult, for a greater possibility exists that a minor's character deficiencies will be reformed,"

So, again Kennedy presupposes the correctness of deciding cases based on moral judgments and we have one majority decision saying it is okay for the Supremes to do that and another saying it is not. This, if you will forgive my French, is a bullshit way to run a system of justice.

I suspect that Kennedy does not mean that every case should be so decided. However, the 8th Amendment to the Constitution states

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

This amendment requires the exercise of moral judgments. Now, the decision as to whether an excessive bail has been imposed or an excessive fine may not involve a moral decision. However, the fact is that the courts take into consideration the means of a defendant in assessing bail. Underlying such a action is the principle that it is immoral to set a bail that would be totally beyond the reach of one person but not another when the crimes are the same in all relevant respects. Up to a point, of course. If a defendant has no financial resources, then any bail is excessive and I suspect that for certain crimes, not imposing bail would not be the judge's choice. Fines are established by law and a judge has little discretion in some cases. Where a judge can decide to suspend the fine for a very poor defendant, doing so because the defendant is poor would represent a moral choice.

Turning to the big issue in regard to the 8th Amendment, it is absolutely clear that what is or is not a "cruel" punishment is a moral question. We seem to be finding out that lethal injections may not always be as pain free as has been thought. Should they be disallowed because they cause significant protracted pain, that would represent a moral choice. No American Court would allow the live dissection of a human as the means of administering the death penalty. Why not? Recognizing that give guides to usage, not definitions, the first "meaning" given for "cruel" in the Merriam-Webster Online Dictionary is

disposed to inflict pain or suffering : devoid of humane feelings

Ureka. We have our response to Mr. Thomas. The 8th Amendment demands a moral judgment and therefore the Supremes are, contrary to what Thomas says, the arbiters of morality in some cases and the death penalty is one of them.

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Tags: death penalty, Supreme Court, morality, Justice Thomas, Justice Kennedy