Jewish World Review Dec. 15, 2004 / 3 Teves, 5765

Thomas Sowell

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Law or soap opera? | The Scott Peterson murder trial is more than a single criminal case. It is a painful reflection on the media, on the law, and on where our society has gone.

The 24/7 coverage of this case, which seems to have been going on forever, has been inescapable for anyone who watches television news to follow what has been happening in the world at large. Even when there has not been a speck of new information about the Peterson case, TV news has broadcast all sorts of speculations about what the prosecution, the defense, the jurors, or the judge might be thinking.

Worse yet, the law itself has turned the trial into a soap opera, even after the jury reached a verdict of guilty, by subjecting the court to an emotional orgy of testimony by the parents of the murdered woman and by Scott Peterson's mother, tearfully pleading for her son's life.

Why has our law degenerated into such wrenching spectacles, which have nothing to do with justice? Does not the very fact that there are laws against murder on the books presume that both the murder victim and their loved ones have been wronged? Do we need the victim's mother to confirm what the law already presumes?

Does anyone doubt that a mother does not want to see her son executed? Must she and jurors both be reduced to tears over something too obvious to require proof? What is accomplished by putting everyone through an emotion wringer, except to generate material for the media?

It is more than enough to take people out of their homes and jobs for months to serve on juries, in order to determine innocence or guilt. Why needlessly subject them to the strain of spending still more time going through the process of determining something that a judge can determine without them — namely the sentence?

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Is there a speck of evidence that sentences are more just, or more widely accepted, as a result of putting laymen through an emotional wringer doing something that a judge — a trained and experienced legal professional — can do without them?

Must these jurors carry with them for the rest of their lives the feeling that they condemned someone to death, when in fact it is the law that condemns murderers to death, which should be prescribed by someone whose career consists of enforcing the law?

Why should the penalties of the law be varied with the emotional presentations or acting abilities of the defendants or members of his or the victim's families? What does that have to do with law or justice?

Criminals need to be confronted with penalties for their crimes, and the more those penalties are lost in a fog of other factors the less effective they are.

For centuries, laws did not require all this emoting and hand-wringing. Only within the past few decades have we been plunged into all this by decisions of the U.S. Supreme Court, creating new "rights" and procedures out of thin air in death penalty cases.

The Constitution never required this and the public's elected representatives never voted for this stuff. But such thinking was in vogue in the circles to which judges respond and they were praised by those for whom anything that can mitigate punishment is a good thing.

At the very least, the time is long overdue to recognize that such judicial activism sets off repercussions that extend far beyond anything the judges may have contemplated, much less be able to monitor and reshape realistically. More often, politically correct whims get set in concrete.

The Constitution of the United States requires "due process of law." But that very concept implies that there can be such a thing as undue process. There can be too much, as well as too little, legal process.

The Scott Peterson case demonstrates that legal processes can be excessive, not only in terms of time, but also in terms of the kinds of non-legal considerations and indulgences that are allowed into the administration of justice.

Courts do not have unlimited resources or unlimited time. How many other cases must be put on hold while emotions are vented? How many other criminals must be allowed to walk the streets awaiting trial while the courtroom becomes the scene of a soap opera?

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JWR contributor Thomas Sowell, a fellow at the Hoover Institution, is author of several books, including his latest, "Applied Economics: Thinking Beyond Stage One." (Click HERE to purchase. Sales help fund JWR.) To comment please click here.


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