Bench Memos

This Day in Liberal Judicial Activism—April 26

1987—In an unspeakably brutal crime, Donald Middlebrooks (a 24-year-old white male) and two accomplices kidnap Kerrick Majors, a 14-year-old black youth, decide to “have some fun” with him, tie his hands, and take him into the woods. There, according to Middlebrooks’s videotaped confession, one accomplice, Roger Brewington, beats Majors with brass knuckles, hits him with a stick, and urinates into his mouth; Middlebrooks slaps Majors and hits him with a switch; and the other accomplice burns his nose with a cigarette lighter. Brewington then abuses Majors’s private parts, beats and gags him, and slashes his wrist. Middlebrooks asks Brewington to stop and initially refuses Brewington’s direction to stab Majors. But after Brewington stabs Majors, Middlebrooks does so as well. Majors dies at the end of the 3-1/2 hour ordeal.

Middlebrooks is convicted of first-degree felony-murder and aggravated kidnapping and is sentenced to death. On appeal, the Tennessee supreme court, by a 3 to 2 vote, vacates the death sentence. In a separate opinion, Chief Justice Lyle Reid, joined by Justice Martha Craig Daughtrey, goes even further, opining that the imposition of the death penalty for a conviction of felony-murder is cruel and unusual punishment under the state constitution. (The U.S. Supreme Court had rejected that conclusion under the Eighth Amendment.) Perceiving themselves as part of the enlightened elite charged with overriding the riff-raff’s benighted views, Reid and Daughtrey condemn the death penalty generally: “Implicit in death penalty jurisprudence is the recognition that the standards of decency are not static but evolving, that society is not stale but maturing, and that the level of community morality will continue to rise until the reasoned moral response of the people of Tennessee will be, if it is not already, that the death penalty is cruel and unusual punishment.” Ah, yes, in the eyes of the liberal judicial activist, no one exercising mature moral reasoning could possibly believe that the brutality inflicted on Kerrick Majors would call for the death penalty as a response.

In 1993, Daughtrey’s credentials as a liberal judicial activist earn her President Clinton’s appointment to the U.S. Court of Appeals for the Sixth Circuit. Meanwhile, on remand, Middlebrooks is again sentenced to death. In 1999twelve years after Majors’s brutal death—the Tennessee supreme court, with Reid and Daughtrey no longer serving on it, unanimously upholds the death sentence.

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