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Guest Post by J.T. Fitzgerald
President Donald J. Trump is reportedly thinking about bringing back certain methods of capital punishment like hangings as well as broadcasting executions on television as part of a second term. Predictably, the media is shrieking at the possibility.
Two recent crimes underscore the need to follow President Trump’s lead and make the death penalty great again. To do that, an originalist Supreme Court must untie juries’ hands in casting down the ultimate punishment. At the same time, Red States must get rid of criminal sanctuaries.
The Murder of a Memphis Mom
Cleotha Abston is charged with the brutal, wanton murder of Eliza Fletcher, a wife, mother of two young sons, and Memphis kindergarten teacher. Prior to Fletcher’s killing, Abston already had a lengthy criminal record. When he was just fourteen, a “juvenile court found it to be true that” Abston “committed a juvenile delinquent act of rape against an unnamed suspect when he was 14.” The rape likely involved sodomy because Abston’s victim was a male.
While his peers marked their sixteenth birthday with getting a driver’s license, “Pookie” Abston committed more crimes. When he was sixteen, Abston kidnapped a Memphis lawyer “at gunpoint, threw him in the trunk of his own car and drove him around to various ATMs, demanding he withdraw cash.”
In 2001, Abston’s victim noted that his tormenter had juvenile matters “in every year — 1995, 1996, 1997, 1998, and 1999″ — and that includes charges of theft, aggravated assault, aggravated assault with a weapon, and rape. Foreshadowing Abston’s future crimes, his victim wrote he “obviously never learned any lesson from his encounters with law.”
Abston received a twenty-four-year prison sentence, but only served twenty of those years on account of time-served and other behavior-related credits. Out of prison, Abston allegedly committed another rape, this time of an adult woman.
That brings us to Abston and Eliza Fletcher. As Tucker Carlson recounted last fall: “According to the indictment [against Abston,] as Fletcher jogged by, Abston leapt out, beat her bloody, smashed her cell phone, then dragged her into his vehicle. Within an hour, Eliza Fletcher was dead. She’d been sexually assaulted and murdered.” The autopsy results show Fletcher died from a gunshot wound to the back of the head.
An Atlanta Pedophile Ring
In January, Townhall reported on the indictment of two “adoptive dads” from Georgia named William Dale Zulock Jr. and Zack Jacoby Zulock. The couple “allegedly performed oral sex on both boys, forced the children to perform oral sex on them, and anally raped their sons.”
Townhall further reported that “[n]ot only did the married men allegedly rape the two boys who were adopted through a Christian special-needs adoption agency, they were pimping out their children to nearby pedophiles in Atlanta-area suburbs.”
If convicted, the Zulocks each face “over nine life sentences” for their crimes. Even if the prosecution proves its case beyond a reasonable doubt, this means the couple would spend the rest of their days in prison, eating three square meals and receiving medical care at taxpayer expense.
The Supreme Court’s Pro-Criminal Death Penalty Jurisprudence
The Eighth Amendment was ratified in 1791. The very next year, according to a database compiled by researcher M. Watt Espy, a Pennsylvania man was put to death by hanging for rape. The Commonwealth of Virginia executed a thirteen-year old arsonist in 1796. In 1801, a California man was executed by firing squad for the crime of sodomy-buggery-beastiality. In 1878, a decade after ratification of the Fourteenth Amendment, Joe Biden’s home state of Delaware put two men to death for rape. Many of these were public executions, the last one in this country occurring in Kentucky in 1936.
At an earlier time in American history, someone with Cleotha Abston’s rap sheet might not have ever seen his sixteenth birthday, much less be alive to leave Fletcher’s two young sons without their mother. Similarly, if convicted of raping a child, the Zulocks could look forward to meeting their Maker, not spending the rest of their life in prison.
What changed? Not the text of the Eighth Amendment—it’s been the same for more than 230 years. What changed is the Supreme Court’s interpretation of that text, effectively blocking juries from imposing the death penalty on rapists, child molesters, and murderers under the age of eighteen.
This began in earnest in 1972. In a case called Furman v. Georgia, the Court instituted a de facto, nationwide moratorium on the death penalty. The great Judge Robert H. Bork, then serving as Solicitor General, persuaded the Court to reinstate the death penalty in Gregg v. Georgia, which was decided in 1976. Bork, a first-rate legal scholar and father of originalism who broadly contributed to the development of the law in a wide swath of areas, including antitrust, would later be denied his rightful place on the Supreme Court by Joe Biden, whose legal resume includes finishing near the bottom of his law school class at Syracuse University.
Five years after Gregg, in Coker v Georgia the Court barred the States from executing criminals who rape women. In 2008, in Kennedy v. Louisiana, the Court took the death penalty off the table for child rapists, a decision that was even a bridge too far for then-candidate Barack Obama, who criticized the Court for its conclusion.
While the Court scaled back the substantive limits of the death penalty, it has also tinkered with capital punishment’s age limitations. In Thompson v. Oklahoma, decided in 1988, the Court barred executions for convicts under the age of 15, and later, in 2005, raised the minimum age for capital punishment to 18 in Roper v. Simmons.
Let’s be clear. There is no “originalist” case for these decisions. They rest on notions like “national consensus” and amorphous, manipulable standards like “evolving standards of decency.” For originalist purposes, here is the only thing that matters: when the Constitution was ratified, was capital punishment practiced in the United States for a given crime and applied to convicts at a particular age? If the answer is yes, the Eighth Amendment does not bar the punishment—period. This was the essential, and correct, logic the Court applied in Dobbs v. Jackson Women’s Health Organization to send the question of the legality of abortion back to the States, sweeping the Court’s egregious Roe and Casey decisions into the dustbin of history.
The Court’s supervisory role, consistent with the text of the Fourteenth Amendment, is to guarantee due process of law, not to sit in judgment of substantive decisions of juries. And even on the procedural issues, as Justice Scalia noted in his concurring opinion in Glossip v. Gross, a case which itself involved a challenge to a method of execution, the Court has created “labyrinthine restrictions on capital punishment.” Today we have a system marked by seemingly endless appeals, many of which do not challenge the underlying guilt or innocence of the condemned, but rather how the killers may be put to death.
Make the Death Penalty Great Again
As Justice Thomas alluded to in Dobbs concurrence, that case is just the beginning, not the end of the work originalists must do at the Supreme Court. The Court’s death penalty jurisprudence needs a complete, and immediate overhaul. At a minimum, an originalist Court must do away with bars on executing rapists (as a Florida appeals court recently suggested) and child rapists as well as age limits on such executions. If minors are old enough to consent to removing their breasts, ovaries, penises, and testicles to transition genders, then they are old enough to face society’s most severe consequences for criminal behavior.
President Trump has called for the death penalty for drug dealers. “The penalties should be very, very severe. If you look at countries throughout the world, the ones that don’t have a drug problem are ones that institute a very quick trial death penalty sentence for drug dealers,” he previously argued.
President Trump’s desire is understandable. This tough-on-crime approach has worked in Singapore and in the Philippines under President Rodrigo Duterte. But if President Trump’s proposal is to turn into anything other than an applause line, the Supreme Court’s death penalty jurisprudence must go.
Without the Court’s meddling in this area, we know a jury could potentially put a needle in the arms of the Zulocks. What about Abston? Would he have gotten the death penalty for raping a child when he was a teenager? Would he have still had the opportunity to kill Eliza Fletcher?
It’s possible Abston would have been executed. Ultimately though, we will never know the answer to that question. And that’s the problem. Society has the right to put would-be criminals on notice: rape, maim, and kill, and your life’s journey ends on a prison gurney. But in the Left’s version of America, addled along by five justices on the Supreme Court, it is regular people who are supposed to be afraid.
This is wrong. It is the grotesque face of anarcho-tyranny. Justice Scalia was right when he wrote the following in his Glossip v. Gross concurrence:
But we federal judges live in a world apart from the vast majority of Americans. After work, we retire to homes in placid suburbia or to high-rise co-ops with guards at the door. We are not confronted with the threat of violence that is ever present in many Americans’ everyday lives. The suggestion that the incremental deterrent effect of capital punishment does not seem ‘significant’ reflects, it seems to me, a let-them-eat-cake obliviousness to the needs of others. Let the People decide how much incremental deterrence is appropriate.
No more. We must make the death penalty great again in this country. The choice as to whether or where to go on a morning jog should not be a take-your-life-into-your-own-hands decision. Instead, in the just and ordered society we seek, violent criminals are the ones who should wonder, and not just about whether their prey is armed, but whether their crimes might lead to a dose of a lethal drug cocktail or an appointment with the firing squad.
Send the question back to the States and Congress, and let the People decide whether child rapists deserve to die for their crimes.
With the power to govern their own affairs, Red States must further empower the People to impose capital punishment. That means taking away the ability of State supreme courts to invent new, pro-criminal interpretations of state constitutions as three Democrat justices recently did on the abortion issue in deep Red South Carolina. These pretend, would-be Earl Warrens should be impeached from their offices.
Red State legislatures should also ensure that no city or locality becomes a sanctuary for rapists, child molesters, and other violent criminals. If Blue cities, prosecutors, and juries will not hold criminals accountable, Red States should change the law to route those cases out of those lawless jurisdictions.
If we can summon the will, we can make America, and the death penalty, great again.
J.T. Fitzgerald is an attorney and constitutional scholar, writing under a pseudonym, because America is neither serious nor free
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