There are fundamental and widening differences in this country between conservatives and liberals. The rifts between the two groups peaked at various times during recent history as in 1964, when Barry Goldwater, Lyndon Johnson’s political opponent, wrote “The Conservative Conscience”, a book which rekindled the conservative movement in America. The great divide between the two groups, broadly represented by the two principal political parties of the US, has fluctuated over the course of time but arguably has never been as great as at present.
The conservative voices of the media proclaim that a recent notch was just carved in the liberals’ or progressives’ column on January 17, 2014. On that day, within the four walls of the building housing the First Federal Circuit Court of Appeals in downtown Boston, Massachusetts, Judge Thompson penned a judicial decision considered by many as among the most absurd ever rendered.
The Circuit Court ruled last week that Kosilek, a convicted murderer sentenced to life in prison 24 years ago for the homicide by strangulation of his ex-wife, which he committed in 1990, has the Constitutional right to a free sex-change operation, to be paid for by the state (that is by the tax paying citizens of Massachusetts).
The murderer Robert Kosilek, now 64, claims to have suffered all his life from a burning desire to become a woman. Kosilek already spent 20 years in prison with all male inmates. While in prison and using the resources of the State’s judiciary, he had already changed his name to “Michelle” Kosilek. Also on the State’s dime, he received electrolysis treatment, hormonal treatment, psychotherapy, as well as women’s clothing and accessories.
The inmate was not satisfied however with any of these arguably extraordinary benefits afforded to him. He therefore sued the Massachusetts Department of Corrections, mandating that he be provided his ultimate objective: a free sex change operation. After years of litigation, the case finally made its way to the Circuit Court of Appeals. Writing for the majority of this Court, Judge Thomson now decided that it is proper for “Michelle” to demand that the State pay for the complex sex change operation to correct his “gender identity disorder”.
The Circuit Court ruled that the eighth amendment mandates that the requested “treatment” be provided to the convicted killer. This part of the American Constitution, ratified in 1791, forbids “cruel and unusual punishment” of detainees. This phrase naturally forbids torture and other cruelties in America.
In Furman v. Georgia, 408 US 238 (1972), Justice Brennan wrote that “there are…four principles by which we may determine whether a particular punishment is ‘cruel and unusual’,” outlined below:
· The “essential predicate” is “that a punishment must not by its severity be
degrading to human dignity,” especially torture.
· “A severe punishment that is obviously inflicted in wholly arbitrary fashion.”
· “A severe punishment that is clearly and totally rejected throughout society.”
· “A severe punishment that is patently unnecessary.”
As early as in 1878, the Supreme Court offered examples of those types of punishments encompassed within the Constitutional prohibition: drawing and quartering, public dissection, burning someone alive, or disembowelment. The Supreme Court later declared executing the mentally handicapped and executing people who were under age 18 at the time the crime was committed to also be violations of the Eighth Amendment, regardless of the crime.
While the interpretation of the Amendment has evolved and morphed over the course of time, critics of the First Circuit’s recent decision are resolute that the ruling completely breaks ties with logic and decency. These argue that it is entirely unlikely that the founders of the Eighth Amendment would have ever imagined that their efforts could be interpreted as loosely and permissively as chosen by the Massachusetts-based court.
The court’s decision was not unanimous. A dissenting judge, Juan Torruella, argued that the treatment already received by Kosilek in jail thus far, including hormonal injections, psychotherapy, electrolysis and women’s clothing, were all more than sufficient and that the Eighth Amendment in no way requires gender re-assignment surgery at the expense of the State.
In summary, the decision in January obligates tax paying Americans to sustain not only the cost of sex reassignment surgery for Kosilek, but also the medical costs post-surgery. Moreover, the public already paid for hormone therapy, psychotherapy and electrolysis, all pre-surgery. The trial and appeal process initiated by Kosilek’s unorthodox demands spanned over the course of years and must have cost the State and the federal government enormous resources as well. Of course, these are costs over and above the cost of supporting Kosilek in prison for the rest of his (or her) life. Critics argue loudly that first grade arithmetic shows that the citizens of Massachusetts are forced to shell out millions of dollars to satisfy the unconventional desires and needs of an individual who has murdered his wife in cold blood, almost decapitating her in the process and leaving her naked body in a mall parking lot. Sadly for us all, agree many media outlets, logic and common sense appear to have yielded yet again to ultra liberal thinking. The Web based publication known as “Western Center of Journalism” echoed the frustration of most conservatives in a simple title heading: “To the annals of liberal judicial activism add another subheading: A federal judge in Massachusetts has ordered the state’s department of corrections to pay for a murderer’s sex-change operation”.
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