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Bench Memos

NRO’s home for judicial news and analysis.

This Week in Liberal Judicial Activism—Week of December 31



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Jan. 2        1992—With their remarkable dissent in Dougan v. State, Rosemary Barkett and two of her Florida supreme court colleagues give a wild start to the New Year.  The case arose from these facts:  In 1974 Jacob John Dougan and four other members of his Black Liberation Army began implementing their plan to (in the words of the trial judge) “indiscriminately kill white people and thus start a revolution and a race war.”  Armed with a pistol and a knife, they picked up an 18-year-old white hitchhiker, Stephen Anthony Orlando, drove him to a trash dump, stabbed him repeatedly, and threw him to the ground.  As Orlando writhed in pain and begged for his life, Dougan put his foot on Orlando’s head and shot him twice—once in the chest and once in the ear.  Later, Dougan made tape recordings bragging about the murder and mailed them to Orlando’s mother and to the media.  Sample content:  “He [Orlando] was stabbed in the back, in the chest and the stomach, ah, it was beautiful.  You should have seen it.  Ah, I enjoyed every minute of it.  I loved watching the blood gush from his eyes.”  Dougan was convicted of murder and sentenced to death.

Some 18 years after the killing, on Dougan’s sixth appeal to the Florida supreme court, Justice Parker McDonald, joined by Chief Justice Leander Shaw and Justice Barkett, opine in dissent that the death penalty is a disproportionate sentence under the circumstances.  The dissent includes these striking observations (emphasis added):

“This case is not simply a homicide case, it is also a social awareness case.  Wrongly, but rightly in the eyes of Dougan, this killing was effectuated to focus attention on a chronic and pervasive illness of racial discrimination and of hurt, sorrow, and rejection.  Throughout Dougan’s life his resentment to bias and prejudice festered.  His impatience for change, for understanding, for reconciliation matured to taking the illogical and drastic action of murder.  His frustrations, his anger, and his obsession of injustice overcame reason.  The victim was a symbolic representation of the class causing the perceived injustices.”

The events of this difficult case occurred in tumultuous times.  During the time of the late sixties and early seventies, there was great unrest throughout this country in race relations.…  I mention these facts not to minimize what transpired, but, rather, to explain the environment in which the events took place and to evaluate Dougan’s mind-set.”

“Understandably, in the eyes of the victim, or potential victims, the aggravating factors clearly outweigh the mitigating; in the eyes of the defendant, his friends, and most of those situated in the circumstances of Dougan, the death penalty is not warranted and is disproportionate to the majority of hate slayings, at least where the victim is black and the perpetrator is white.”

“In comparing what kind of person Dougan is with other murderers in the scores of death cases that we have reviewed, I note that few of the killers approach having the socially redeeming values of Dougan.”  (This apparently refers to the dissent’s earlier observations that Dougan was “intelligent,” “well educated,” “a leader in the black community,” “taught karate and counseled black youths,” and once “participated in a sit-down strike in defiance of a court order” at a lunch counter that refused service to blacks.)

2007—“I can see myself as a conservative, to tell you the truth, a judicial conservative,” hallucinates Justice John Paul Stevens.

 

Jan. 3        2005—The Kansas supreme court rules (in Montoy v. State) that the state statutory scheme for funding public schools in Kansas violates the state constitutional provision that states that the legislature “shall make suitable provision for finance of the educational interests of the state.”  The court asserts that “increased funding” is needed to meet the supposed and separate constitutional requirement that the state’s educational system must always be getting better and better.  Beyond that, however, the court is unable to provide any clear guidance on what the legislature is required to do:  “The equity with which the funds are distributed and the actual costs of education, including appropriate levels of administrative costs, are critical factors for the legislature to consider in achieving a suitable formula for financing education.”  Ah, that’s very helpful.

Three concurring justices would pull off an even more audacious judicial power grab by holding that education is a fundamental right under the state constitution (and by overruling the court’s 1995 precedent to the contrary).   


Tags: This Day in Liberal Activism


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