Posted by
Andrews on Thursday, June 26, 2008 5:02:09 PM
In recent years, the Supreme Court has used the argument of "evolving standards" to strike down death sentences against many specific categories of defendants, including those under 18, those claiming a subnormal IQ, and those convicted of raping children. I would argue that such an approach is contrary to the entire concept of law.
To be effective, law must be constant. It can take into account certain fixed factors, but it should be predictable. A citizen should know "If I do X, then Y will result.". We can take past behavior into account, so that a person can say "If I do X for the third time, then Z will result," but it should still be predictable. Otherwise it defeats the purpose of having laws at all.
We recognize this in one direction. If A is not illegal, and then someone commits act A, we cannot arrest him, declare A illegal, and then imprison him. Our prohibition against ex post facto legislation is a recognition of this principle, that we cannot make something illegal and then punish those who previously committed the act. We also recognize that we cannot have arbitrary punishments, our entire shift away from common law open penalties tot he fixed penalty ranges of modern criminal codes is recognition that citizens benefit not only from knowing what is and is not a crime, but what the punishment for any crime will be.
However, we need to guard against the opposite problem. It does not appear obvious, but it is just as much of a problem to take a crime and make it legal as well. How so? If I rely on the fact that B is illegal, I expect that the state will prevent people form committing act B. However, if the state suddenly declares B to be legal, I now am at risk as I assumed the state was preventing people from doing so.
Similarly, changing the penalty after the fact makes punishment unreliable. The reason punishment can work as a deterrent is that punishment is certain. If criminals get the idea that punishment may be reduced or may be avoided entirely, it undermines any deterrent effect that punishment may have.
And that is why the "evolving standards" argument is so pernicious. Instead of creating a sure punishment and clear guidelines, it means that the law is subject to changes without warning. It means that if the public's perceptions change, or if the Supreme Court THINKS the public's perceptions have changed, then punishment can change as well.
The truth is, if the public truly wants to change punishment for a crime, then they should change the law. But then again, the court isn't really interested in the public's will anyway. Five states just recently enacted laws allowing the death penalty for child rapists, which means the public favors this, rather than opposes it. yet the court argues "evolving standards" are against the plain will of the public.
In other words, "evolving standards", which would be pernicious enough if they represented just the momentary whim of the public at large, is even worse, at it represents nothing more than the feelings of 5 justices and their liberal friends. And on that basis the law of the United States is changed.