The politics of Kennedy v. Louisiana
In the Spartanburg Herald Journal today was an op-ed piece by myself and by Senator Kevin L. Bryant, on the U.S. Supreme Court's decision in Kennedy v. Louisiana. I point out, in a reproduction of this post from June, that the enactment of South Carolina's child rape death penalty statute was a stunning example of bad politics controlling legislation. Despite the fact that there is a national consensus against the death penalty in non-homicide cases (there has not been an execution in a non-homicide case since 1963), it serves none of the traditional purposes of the criminal justice system, and there is an enhanced danger of wrongful convictions in child rape cases, railing against child-rapists is a tested and proven way to get attention and votes. It's right up there with tougher penalties for DUI and drug crimes.
Senator Bryant, who "led the fight for the inclusion of the death penalty sentencing in South Carolina's version of Jessica's Law," calls the majority of the Supreme Court "arrogant," and rails about how the liberal justices are "legislating from the bench," saying: "I did not seek office to take orders from unelected men and women who offer their prescriptions for society from behind a black robe, and I think the vast majority of my constituents elected me to represent them, not do the bidding of the judiciary."
Tough words, and yet another beautiful sound-byte for the public. We don't need liberal judges to tell us what is constitutional or not, our esteemed president could have told us that. The Senator leaves us with a reminder that elections are in November: "Our only protection against an encroaching judiciary lies in our ability to select the president who appoints its members. Please remember that in November."
I'm not disputing that Bryant's view is shared by many, and it is what the masses want to hear. It is good politics, but good politics makes for bad law. When this bill was being debated, South Carolina's defense bar and prosecutors joined together in opposing it as unconstitutional, and yet our legislature disregarded their advice and passed the law anyway.
