Wednesday, June 27, 2012

The Usual Cruelty

In this morning's reading through the newspaper, I found myself caught up in a most peculiar column by George Will.  I enjoy him, as I also enjoy Michael Gerson and Kathleen Parker.  Articulate, intellectually capable conservatives are generally quite entertaining to read.

This column, though, snared my attention more than most.  Perhaps it was the viscerality of Will's beginning, in which he recounted a "lenient" penalty for a horse thief in the 1790s, which involved the removal of ears and face-branding.  What was most striking was Will's analysis of a recent Supreme Court decision, in which the SCOTUS ruled that mandatory life sentences for juveniles represented "cruel and unusual" punishment.  The moderate/liberal wing of the court argued that forbidding judges to consider details of the crime coupled with the youth of the offenders meant that justice could not be served.  The inflexible sentencing guidelines had to go.

The four conservative justices disagreed, of course, but it was their core rationale...described dispassionately by Will...that caught my eye.  For the punishment meted out by a law to be unconstitutional, Alito/Roberts/Scalia/Thomas dissented, it must be cruel and unusual.  Meaning, it must a) be cruel and b) also be unusual.  If it is cruel, but is regularly and systematically practiced and legislated, then, argued the dissenters, it cannot be considered unconstitutional.

For justice to be justice, it must be "usual," meaning it must be fairly and evenly administered.  It's not an equation, but if I run a red light, and you run a red light, our tickets should be the same.  Extenuating and relevant circumstances always apply, of course.   If I run it because I'm thumb typing out a tweet while shaving, and you run it because your wife is 10 centimeters dilated and feeling the urge to push, then that factors in, or justice is not served.  But if I get a pass because I'm the son of the sheriff, and you pay a $200 fine because you're not, then justice is not served.   It has to be "usual."

But for justice to be justice, it can also never be cruel.   Hanging or mutilating a horse thief might be the law of the land, but the law and justice are not always the same thing.  Cruelty and brutality in punishment have never served the cause of justice.  They're great for instilling fear in a populace.  But justice?  Not so much.

In this jurisprudential parsing, to be honest, I heard echoes of my own children.  

"Don't kick and punch your brother," I might say. Thirty seconds pass, and then BAM!  "DAAAAAD HE PUNCHED MEEEEE!"  To which I'd say, "Did you punch your brother," and he'd say "Sure, but you said don't kick and punch him.  I only punched him."

Or, worse yet, the "well, all the other kids are doing it" line.  That would make it "usual," eh?