Two criminal cases—one involving the death penalty and the other involving the rights of the transgendered—have recently been before the courts. Decisions made in these cases may provoke public backlashes, eroding support for the death penalty and/or support for transgender rights. All decision makers in these cases must proceed with utmost caution lest the principles they seek to uphold be rejected by the public.
Students of American electoral behavior assert that We the People dislike extremism. All other things being equal, the voting public will, in a general election, select a perceived moderate over a perceived extremist—Lyndon Johnson over Barry Goldwater, Richard Nixon over George McGovern. A major reason for President Trump’s 2024 electoral victory was his ability to convince the voters that Vice President Harris’s views on lax immigration and border control laws and the acceptability of taxpayer-financed sex change operations for convicted criminals made her an extremist.
And the public will reject ideas they consider extreme as well. For example, most members of the public reject the idea that abortion should be illegal in almost all circumstances except, perhaps, to save the life of the pregnant woman. But they also reject the idea that abortion should be legal in all cases, even if the issue is the abortion of a healthy unborn baby at 9 months into the pregnancy.
The case, which today may provoke public rejection of the death penalty and its advocates as too extreme, depending on its outcome, is that of Robert Roberson, about whom I wrote last year. In 2003, he was convicted and sentenced to death for systematically abusing and thereby killing his infant daughter. At the time, prosecutors charged that Roberson’s daughter died due to “Shaken Baby Syndrome.” But a bipartisan coalition of Texas lawmakers is demanding that Roberson be granted a new trial, arguing that “Shaken Baby Syndrome” is based on “junk science,” or pseudo-scientific conclusions based on inadequate or fraudulent research.
I support capital punishment as a tool to execute heinous criminals while expressing societal outrage at their crimes. The execution of Timothy McVeigh, once he had been found guilty beyond any doubt of mass murder in the 1995 Oklahoma City federal building bombing, was a moral imperative. Decisions allowing the Manson family and Bryan Koberger to escape execution for their crimes are gross miscarriages of justice.
But the main drawback to the death penalty is the possibility that it might be misapplied to the wrong people, i. e., that an innocent person might be put to death. This would be a horror in and of itself. Moreover, the carelessness of the death penalty’s application might so repel the public as to cause legislatures, bowing to public opinion, to eliminate it entirely, as has already happened in many states.
Given the growing and apparently legitimate doubts about “Shaken Baby Syndrome” as a cause of death, Roberson should be spared the death penalty, at least for the time being. He should be granted a new trial wherein his daughter’s cause of death is more thoroughly explored, given the latest scientific research, with all reasonable doubts being resolved in his favor. He may well be spared—as he should be if, in fact, he’s innocent. But the death penalty, too, will be spared as well if the public continues to believe it remains a necessary tool to combat evil, but not one to be used by extremists who, in their zeal, kill the innocent as well as the guilty.
The second case involves a criminal defendant, Nicholas Roske convicted of the attempted murder of Supreme Court Associate Justice Brett Kavanaugh. Roske admitted to planning to kill Kavanaugh to forestall the issuance of the Dobbs decision overturning Roe v. Wade, which had created a constitutionally protected abortion right. Roske also admitted to wanting to prevent Kavanaugh from upholding gun owners’ rights.
Federal sentencing guidelines recommended a minimum incarceration of 30 years, but the judge in the case sentenced Roske to only 8 years, albeit with lifetime supervision thereafter. So why the relative leniency in the sentencing?
Part of the reason, the judge said, is that Roske allowed his sister to talk him out of going ahead with his mad scheme. He then voluntarily called the police to turn himself in before actually trying to do anything to Kavanaugh.
But the judge also noted that while Roske was a biological male, Roske had begun to identify as female when it became time to impose sentencing, and the judge chose to accept that he had become a she, who now went by “Sophie.” However, the Justice Department requires criminals convicted of federal crimes to be sent to prisons consistent with their biological sex and not with the sex with which they say they identify. So, the judge gave Roske a lighter sentence to spare Roske the hardships a woman might otherwise suffer in a men’s prison.
I’ve written before that transgender adults should not be deprived of their rights simply because they’re transgender. One should be able to identify as anything one wants as long as doing so neither harms nor confers an unfair advantage over others. Thus, a male may consider himself a female under most circumstances, but should not be allowed access to female restrooms or play against females in sports where his male-based physical characteristics would confer an unfair competitive advantage or endanger his opponents.
But in this case, to give to a male claiming to be female a prison sentence significantly lighter than might have been given to a male making no such claim seems to be conferring an unfair advantage benefiting the transgendered. Equality of rights should mean equality of responsibilities as well. Granting the transgender individuals lighter prison sentences because they’re transgender (or at least say they are) undercuts the principle of equal justice under the law. The possibility of public backlash against transgender individuals should be considered too great to be ignored.
Advocates of the death penalty must demand that it be applied only when all legitimate doubts have been answered, and they should be open to reconsidering cases if necessary to answer those doubts. Otherwise, the public will dismiss death penalty advocates as irrational extremists whose ideas, including support for the death penalty, must be rejected, and the death penalty as an effective tool for law enforcement will be lost. So, too, must advocates for the rights of the transgendered reject the conferral of special privileges, including lighter punishments for proven crimes, lest they also be dismissed as extremists in a backlash that may well endanger the legitimate rights of the transgendered as well.
Malcolm L. Cross has lived in Stephenville since 1987 and taught politics and government at Tarleton for 36 years, retiring in 2023. His political and civic activities include service on the Stephenville City Council (2000-2014) and on the Erath County Republican Executive Committee (1990-2024). He was Mayor pro-tem of Stephenville from 2008 to 2014. He has served on the Board of Directors of the Stephenville
Economic Development Authority since 2018 and as chair of the Erath County Appraisal District’s Appraisal Review Board since 2015. He is also a member of the Stephenville Rotary Club, the Board of Vestry of St. Luke’s Episcopal Church, and the Executive Committee of the Boy Scouts’ Pecan Valley District. Views expressed in this column are his and do not reflect those of The Flash as a whole.
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