A Fix-It Day for Broken Down Justice

Yesterday, the Supreme Court took another step toward making drug sentences fair, and New Jersey's senate endorsed the only logical way to make the death penalty fair -- it voted to abolish capital punishment in the Garden State.

These two big, meaty legal stories are not nearly as disconnected as you might think. When deciding Kimbrough v. United States, seven Supreme Court justices agreed that Congress had been unresponsive to the executive branch's requests to fix the discrepancy between crack cocaine sentences and ones for powder cocaine.

And when New Jersey's state legislators voted to abolish the death penalty, they acknowledged that Congress, the White House and the courts had been unresponsive to requests from the nation's legal community to make capital punishment quicker and more thorough.

In both cases, fed-up men and women decided to push through the political inertia to begin to fix some of the long-broken parts of the system.

The Supreme Court's summary in Kimbrough reveals the scope of Congressional lethargy: "The [U.S. Sentencing] Commission has several times sought to achieve a reduction in the crack/powder ratio. Congress rejected a 1995 amendment to the Guidelines that would have replaced the 100-to-1 ratio with a 1-to-1 ratio, but directed the Commission to propose revision of the ratio under the relevant statutes and Guidelines. Congress took no action after the Commission's 1997 and 2002 reports recommended changing the ratio." In other words, Congress did less than nothing.

That's part of why the Court acted yesterday. And it is part of why, later today, the Commission is scheduled to vote on a measure that would apply new, reasonable sentencing ratios retroactively for thousands of drug convicts.

In New Jersey, meanwhile, change came because legislators were willing to admit that the "death penalty experience" in their state had failed -- no one has been executed in New Jersey since 1963.

The New York Times adds this nugget: New Jersey's "procedures for carrying out an execution were declared unconstitutional in 2004 by a state appeals court, and the Department of Corrections has said it has no intention of rewriting them." So "how can I argue the deterrent effect of the death penalty when we haven't had one?" asked Senate President Richard Codey (R-Essex).

How, indeed.

By Andrew Cohen |  December 10, 2007; 7:42 PM ET
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I am very glad to see that the Supreme Court is willing to step in and act as legislature AND executive to fix our broken system. Even if this ignores that annoying 1st Article of the Constitution that puts ALL legislative powers in the hands of Congress.

Will judges be able to allocate GREATER sentences as well? I mean whatever judges think is law, right?

It is not surprising that the Justices would want to seize more power, any time that the legislature fails to act in three or four years, let's just send a case to the Supreme Court for legislative fiat. While they are at it, I understand these hard working justices are under paid. They should just go ahead and announce how much raise they are getting, after all committees have recommended this for years so the Justices should just get this over with.

I know I am not going to waste any more fuel going to vote for my legislators. What's the point? Unless they act as proactive rubber stamps like the NJ legislature before the Supreme Court can nullify their laws they have no role in any of this.

I am sending my checks care of the Supreme Court from now on, saving on transferring monies from the IRS through the Treasury Department.

Posted by: Constitutionalist | December 11, 2007 10:42 AM

Two issues with disfunctional due process of law seem to loom as fog in Winter. One, since when is government defined as people waiting to be saved by those they condemn? And second, violence (I abhor the word terrorism) is a result of disfunctional due process of law, not a necessary evil in human management. If due process is just, faith (fides) rules as truth. The blind lead the blind into trouble. Ralph Waldo Emerson quoted as having explained, "After all knowledge, what of forgiveness?" A rescitivist protests disfunctional justice.
The mentally ill cannot argue logic. Rome was not built in a day, but in one day burned.

Posted by: ignoramus | December 11, 2007 12:14 PM

Wacky headlines in unread newspapers. "Death penalty fails to save life." "Man imprisoned to save him from himself." "Pregnancy delayed due to lack of interest." "Sun stands still as time becomes a false assumption."

One can have a lot of amusement in generating absurd "truth". Oxymorons anyone?

Posted by: headliner | December 11, 2007 12:23 PM

I don't usually find myself in agreement with Constitutionalist but am so today. Not before the Court were its prior rulings that the 100 to 1 ratio was a rational legislative judgment. Those rulings are undisturbed. So if the Congress could rationally draw that distinction between crack and powder, then now the (rational) disparate treatment of crack and powder becomes a ground for a downward departure? I didn't think the Supremes were going to be able to square these points, and the failure of Congress to act on various pleas from the executive has nothing to do with the price of tea in China. Once again, the Court is activist when it wants to be. This was properly within the legislative realm.

Posted by: ExAUSA | December 11, 2007 05:25 PM

The death penalty does not deter violent criminals. The cost of keeping an inmate in most prisons is $30,000 + or -. Why not pay potential violent criminals $10,000 per year not to commit crimes and provide vocational schools? Prisons are institutions of higher learning for criminals--Colleges of Crime..

Posted by: ghostcommander | December 11, 2007 08:36 PM

The death penalty saves many innocent victims lives.
There are thousands of cases were a convicted murderer is released, pardoned or has finished his liberal revolving door justice sentence, only to kill again. This ain't rocket science folks. Had they received the death penalty the first time that they murdered somebody, they couldn't murder another person again.

re. the taxpayers cost of about $30,000 per prisoner to keep them locked up.
Several years ago Bill Buckley Jr. wrote that Mexico had offered to take any of our locked up prisoners for $2.50 per day. It might be a bit more now but it sounds like a great deal to me.

Posted by: madhatter | December 12, 2007 03:02 PM

ghostcommander...better yet...and where this is all headed......justice is going to have to be effected by the victims since the system has become corrupted. not a happy ending...but one that is predictable.

Posted by: LMAO | December 13, 2007 08:05 AM

NJ Senate President Richard Codey is a Democrat from Essex County, not a Republican.

New Jersey's rate of 4.5 murders per 100,000 inhabitants is average among the states. Too bad states that actively use capital punishment can't say the same. The states with the most executions: Texas, Virginia, Oklahoma, Missouri and Florida all suffer from significantly more murders per 100,000 inhabitants.

Capital punishment as a deterrent? Ha!

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