Sirhan Sirhan was deservedly sentenced to death for the assassination of Robert Kennedy. Regrettably, a double hit of judicial activism struck in 1972, saving him and many others from their deserved punishments. In February of that year, the California Supreme Court declared that capital punishment violated the California Constitution, brushing off the inconvenient truth that the constitutional convention had debated and voted on the precise question and decided it the other way.
A few months later, the U.S. Supreme Court decided that the way nearly all capital punishment statutes at the time gave wide-open discretion to the jury violated the United States Constitution. Only a year earlier, the high court had decided 6-3, in a thorough and scholarly opinion by Justice Harlan: “In light of history, experience, and the present limitations of human knowledge, we find it quite impossible to say that committing to the untrammeled discretion of the jury the power to pronounce life or death in capital cases is offensive to anything in the Constitution.” Had the Constitution been amended in the interim? No.
California had no life-without-parole alternative at the time, so all the death row inmates got life with parole, including Charles Manson and Sirhan Sirhan. But surely no parole board would actually let either of these two out, considering the magnitude of their crimes, right? Continue reading . . .