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June 25, 2008

Death Too Cruel for Rapists of Children: Appalling 5-4 Decision Again Points to Need for New Court

This Supreme Court has done it again.

In another horrific 5-4 decision, with the deciding vote cast again by Justice Kennedy, the U.S. Supreme Court ruled today, in Kennedy v. Louisiana, that the death penalty constitutes "cruel and unusual punishment" for people convicted of raping children.


Go ahead. Read it again. I'm not kidding.

People who are convicted of the most vile and vicious crime most of us can think of, perpetrated against the most innocent among us, are not candidates for the death penalty. Justice Kennedy wrote:

The death penalty is not a proportional punishment for the rape of a child...

Well, no. Of course not. It is not possible in this life to punish someone proportionally to the rape of a child. Death is far too good for someone who would physically and sexually abuse a child, steal their innocence, and scar them for life. For that, you would need torture.

But it's the best we can do. Except in the eyes of the five flexible and incomprehensibly forgiving justices of the Supreme Court. (Do I really need to tell you who were the 5 and who were the 4? Go look up the discussion we just had about the Guantanamo decision. Same game, same players.)

In the case under consideration, a wretched creature named Patrick Kennedy (no, not that one) was convicted of rape. No, not just rape. Rape of an 8-year old. But not just an 8-year old.

His 8-year old step-child.

And did I mention that he initially blamed his horrible crime on two 10-year old boys?

What a charmer.

Would anyone like to show me where the Founders would not have executed a man who raped his own 8-year old daughter? Is this what they had in mind?

Here's a little snippet from the evidence the Court reviewed that led them to their decision:

L. H. [the victim] was transported to the Children’s Hospital. An expert in pediatric forensic medicine testified that L. H.’s injuries were the most severe he had seen from a sexual assault in his four years of practice. A laceration to the left wall of the vagina had separated her cervix from the back of her vagina, causing her rectum to protrude into the vaginal structure. Her entire perineum was torn from the posterior fourchette to the anus. The injuries required emergency surgery.

Part of the Court's convoluted reasoning argues that we should consider that few states capitalize rape, although Louisiana points to the fact that the trend is toward doing so, not toward reducing the penalty. The Court downplays the importance of the trend, finally concluding that:

After reviewing the authorities informed by contemporary norms, including the history of the death penalty for this and other nonhomicide crimes, current state statutes and new enactments, and the number of executions since 1964, we conclude there is a national consensus against capital punishment for the crime of child rape.

And....so?

It is curious indeed that the Court has chosen to measure the appropriateness of a punishment by a sort of popular survey of state opinion. Do they plan to do the same when faced with the issue of gay marriage? Will our four-plus-one liberal justices grant an automatic assumption of victory to the more than 40 states that have expressed their desire to ban gay marriage?

Somehow, I doubt it.

And the Court suggests that it is somehow better for the children if the rapists are not in fear of their lives:

In addition, by in effect making the punishment for child rape and murder equivalent, a State that punishes child rape by death may remove a strong incentive for the rapist not to kill the victim.

This seems like a rather ridiculous notion to bring up, given that the existing death penalty for child rape did not in fact cause the girl's stepfather to kill her in this case. But it's clear from the ruling that Kennedy and his clique were not interested in finding a way to preserve the law in the first place.

In the end, the majority determines the ruling on two points: a "national consensus" that the death penalty is inappropriate for child rape; and an undefined, inexplicable notion called "the Court's judgment" that the first is the right position.

Alito's blistering dissent takes the majority to task for its seeming coldness to the horrific nature of the crime to be punished:

The Court today holds that the Eighth Amendment categorically prohibits the imposition of the death penalty for the crime of raping a child. This is so, according to the Court, no matter how young the child, no matter how many times the child is raped, no matter how many children the perpetrator rapes, no matter how sadistic the crime, no matter how much physical or psychological trauma is inflicted, and no matter how heinous the perpetrator’s prior criminal record may be.

In the dissent, Alito points out that states which were on the way to capitalizing child rape stalled only after the Court granted certiorari in this case, leading to a wait-and-see attitude on the part of legislators. Moreover, many are hesitant to move on the issue in light of the ruling that disallowed the death penalty for the rape of an adult woman. In the absence of a clarification of the applicability of the Eighth Amendment, it would be a Constitutional risk for states to move further toward harsher punishment. Yet, despite the risk, some did. The majority ignores its own role in the trend it uses to justify this ruling.

there is no evidence of which I am aware that these legislative initiatives failed because the proposed laws were viewed as inconsistent with our society’s standards of decency. On the contrary, the available evidence suggests otherwise. For example, in Colorado, the Senate Appropriations Committee in April voted 6 to 4 against Senate Bill 195, reportedly because it “would have cost about $616,000 next year for trials, appeals, public defenders, and prison costs.” Likewise, in Tennessee, the capital child-rape bill was withdrawn in committee “because of the high associated costs.” The bill’s sponsor stated that “ ‘[b]ecause of the state’s budget situation, we thought to withdraw that bill. . . . We’ll revisit it next year to see if we can reduce the cost of the fiscal note.’ ” Thus, the failure to enact capital child-rape laws cannot be viewed as evidence of a moral consensus against such punishment.

Alito also ridicules the majority's contention that the failure of Congress to enact such legislation has some kind of meaning, reminding them (one would think, unnecessarily--aren't they all lawyers?) that "very few rape cases, not to mention child-rape cases, are prosecuted in federal court.Congress’ failure to enact a death penalty statute for this tiny set of cases is hardly evidence of Congress’ assessment of our society’s values."

Alito finds the "national consensus" the majority claims to be largely in the imaginations of those five justices. And he makes short work of their arguments concerning effect of the death penalty on the rape victims.

Finally, Alito squarely takes on the majority's seemingly intuitional "judgment" that, while murder can be punished with the death penalty, rape can not, because it is not as "morally depraved":

With respect to the question of moral depravity, is it really true that every person who is convicted of capital murder and sentenced to death is more morally depraved than every child rapist? Consider the following two cases. In the first, a defendant robs a convenience store and watches as his accomplice shoots the store owner. The defendant acts recklessly, but was not the triggerman and did not intend the killing. In the second case, a previously convicted child rapist kidnaps, repeatedly rapes, and tortures multiple child victims. Is it clear that the first defendant is more morally depraved than the second?

This serves as yet another reminder of how crucially important the next president is, if only because he will invariably appoint one or more new justices, who will steer the court for perhaps decades to come.

Enemy combatants treated like American citizens. International custom read into American law. Traditional morality swept away with the stroke of a pen. And, now, this. You can't execute people who rape children. As Alito said, no matter how many children, no matter how cruelly, no matter how, where, or with what. You can't. No matter what.

One different justice would have changed that verdict.

Give us the president that can give us that justice. So the Court can finally give justice to the children across the nation crying out against their "nonhomicidal" rapists.

Get out and vote for that president.

Posted by Kerry at June 25, 2008 02:05 PM

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Comments

Damn, Christians have the bloodlust! Kerry, you should take matters into your own hands and start killing rapists. Yeah, rapists. Please tell me why only child rapists deserve death and not "normal" rapists. Maybe it's because your definition of a person is unclear.... Hmm, maybe we shouldn't enter that discussion again as it makes your head hurt too much.

Kill this one, don't kill this one... You got some fucking weird ideas. Start with killin' all or not killin' how about that. Murder is murder, isn't it, oh holy one?

Only your silly God knows.

Hypocrite.

Posted by Star Spangled Eagle [TypeKey Profile Page] at June 25, 2008 07:50 PM

Before anyone gets in my face and whines:

"buuuuuuuuuuuuuut SSE, what is wrong with you, are you on drugs, we're talking about children!"

Yeah, I know, and I agree it's a fucking horrible crime!

Let me ask you though, who let you play God? Oh that's right, you did! To say you KNOW it is "right" to kill someone for one type of crime, no matter how evil it is, over another, is just plain guessing. You're playing God, and that ain't no laughing matter.

Why don't you go to your state's prisons and ask to be the lethal injector gal or the "throw the switch" gal. "GOD" knows you have the killer in you.

Posted by Star Spangled Eagle [TypeKey Profile Page] at June 25, 2008 08:42 PM

Actually agree with Kerry, I don't mind sending an added message to criminals to stay away from kids. Heck even criminals generally have a problem with pedophiles and take care of them swiftly in prison.

Posted by ahmanrah [TypeKey Profile Page] at June 25, 2008 08:57 PM

"Damn, Christians have the bloodlust! Kerry, you should take matters into your own hands and start killing rapists. Yeah, rapists. Please tell me why only child rapists deserve death and not "normal" rapists."

Actually, I think they all deserve capital punishment. But the Supreme Court had already ruled in 1977 in Coker v. Georgia that you can't impose the death penalty for the rape of an adult woman. States had, however not been prevented from imposing it for the rape of a child. Prior to this, the holding in Coker had been interpreted variously by state courts. It was not clear whether child rape was included in that prohibition.

"Maybe it's because your definition of a person is unclear.... Hmm, maybe we shouldn't enter that discussion again as it makes your head hurt too much."

No, it has nothing to do with "person." It has to do with the fact that this Court is moving ever closer to overturning Gregg v. Georgia (1976) which flat-out stated that the death penalty is NOT "cruel and unusual punishment."

"Kill this one, don't kill this one... You got some fucking weird ideas. Start with killin' all or not killin' how about that. Murder is murder, isn't it, oh holy one?"

Yes, murder is murder. But killing isn't murder.

"Let me ask you though, who let you play God?"

Well, in the case of the Supreme Court allowing individuals to commit murder (not just the state, as you think it is doing), Harry Blackmun and his crew did. When they decided that doctors can decide that an unborn child isn't worth the life that potentially beats within it.

"Actually agree with Kerry, I don't mind sending an added message to criminals to stay away from kids. Heck even criminals generally have a problem with pedophiles and take care of them swiftly in prison."

Thank you. Anyone with any human feeling should know that rape itself is a hideous crime--but rape of a child is not just rape. It is the violation of innocence and the utter ruination of a human life.

By the way, I have recently been talking to some prison guards I know, and as it turns out the pedophile hatred we have always heard about is no longer the case. Rather, in many cases now, pedophiles are welcomed because it is believed they will be willing participants in prison sex.

Don't ask me; I just report this stuff.

Posted by Kerry [TypeKey Profile Page] at June 25, 2008 09:12 PM

I still disagree with both of you. Murder is murder, either it's all wrong or it's all fair. If you're going to kill a person, no matter what acts they have committed, you run into all sorts of ethical and moral problems, contrary to how you think Kerry, I come to this conclusion WITHOUT a God or any supernatural element.

Again, I don't deny that the crime is hideous, I just question executions. I think they're barbaric and should be left in the past with the many other horrible acts that humans have done.

Posted by Star Spangled Eagle [TypeKey Profile Page] at June 25, 2008 09:30 PM

I don't mind sending an added message to criminals to stay away from kids.

ahmanrah, I'm disappointed in you. You are aware that executions and the death penalty are not successful deterrent to heinous criminal acts, right? I mean, proof?

Irrational people committing horrible acts don't really think things through.

Or, you could just look at the numerous violent offenders consistently in the prison system....

Posted by Star Spangled Eagle [TypeKey Profile Page] at June 25, 2008 09:37 PM

SSE,

Sorry, but there is just something about messing with kids I just can't stand. And I actually believe you steal more from a child when you kill or rape them, because they have just started life, and didn't get to enjoy much if it before some asshole really screwed it up for them.

Kind of the same way I feel about this country's real lack of value toward soldiers who in their late teens or early 20's get killed or suffer a life ruining wound. Most people think its enough to call them a hero, slap a medal on their chest and give them a few thousand bucks and call it good. Doesn't cut it for me.

Posted by ahmanrah [TypeKey Profile Page] at June 25, 2008 10:51 PM

I'm with ya, but taking that horrible person, and killin' em? That's the solution? Because you "can't stand" it, they need to die?

I understand a child may have a screwed up life after some traumatic event like this, but how do you just kill someone. What is the point of the death penalty? It doesn't help the criminal, cause he's dead, It doesn't help the kid, cause she/he has already had the trauma. Oh that's right, it helps the bloodthirsty crowd who are rightfully upset, but thinking irrationally. Exclamations of "That son of a bitch is going to burn in hell!" or "Kill him, he deserves to die for what he did!" are rightfully difficult to ignore.

Finally, put yourselves in my shoes, you think, "Oh no! Now we have to put all of these convicted offenders somewhere, we've got to find the space, get the money and continue to get the money to run prisons to hold these thugs. This worries me too, but I still can't see how the death penalty is the correct solution.

Posted by Star Spangled Eagle [TypeKey Profile Page] at June 26, 2008 12:04 AM

"I still disagree with both of you. Murder is murder, either it's all wrong or it's all fair. If you're going to kill a person, no matter what acts they have committed, you run into all sorts of ethical and moral problems, contrary to how you think Kerry, I come to this conclusion WITHOUT a God or any supernatural element."

Oh, I absolutely believe you. In fact, you can't come to that conclusion WITH God, because God distinguishes between murder and killing.

"Again, I don't deny that the crime is hideous, I just question executions. I think they're barbaric and should be left in the past with the many other horrible acts that humans have done."

So, you think the "barbarism" of execution outweighs the "hideousness" of child rape?

""I don't mind sending an added message to criminals to stay away from kids.""

"ahmanrah, I'm disappointed in you. You are aware that executions and the death penalty are not successful deterrent to heinous criminal acts, right? I mean, proof?"

And I disagree, because I don't think a deterrent result is required. I think it's important to the integrity of society to send the message, regardless of whether the rapists receive the message or not.

"Irrational people committing horrible acts don't really think things through."

What makes you think child rapists are "irrational?" This one wasn't. He had the presence of mind to craft an alibi. Or do you automatically assume that child rape is an "irrational" act? If so, why? Disgusting, sure. Immoral, absolutely. But "irrational?" Why?

And if that crime is automatically "irrational," why isn't ALL crime? In which case, how dare we punish anyone, since they are irrational and can't help it? (Or is it just that they're "irrational" and won't get the point?)

"Kind of the same way I feel about this country's real lack of value toward soldiers who in their late teens or early 20's get killed or suffer a life ruining wound. Most people think its enough to call them a hero, slap a medal on their chest and give them a few thousand bucks and call it good. Doesn't cut it for me."

It's NOT the same thing. Soldiers VOLUNTEER for service, knowing they could be injured or killed. Child rape victims--except in the eyes of the most dedicated NAMBLA pederasts--are NOT volunteers. They are not making a conscious choice to enter into the behavior that has the potential to ruin their lives. In fact, by law they cannot even do so.

"I'm with ya, but taking that horrible person, and killin' em? That's the solution? Because you "can't stand" it, they need to die?"

No, they need to die because they freely CHOSE to take the functional life of another human being. Such an act disqualifies you from the benefits of civilized society.

"I understand a child may have a screwed up life after some traumatic event like this, but how do you just kill someone."

Lethal injection. Doesn't hurt a bit.

"What is the point of the death penalty?"

To express the respect of society for the integrity of an individual innocent human being. To express the sense of society that it will not permit other individuals to violate that integrity without paying the ultimate penalty.

"It doesn't help the criminal, cause he's dead,"

And that's a good thing.

"It doesn't help the kid, cause she/he has already had the trauma."

No, you are wrong. It DOES help to know that the person you were violated by can never do it again, will never show up on your doorstep, and has been deprived of every good thing forever. It helps a lot.

"Oh that's right, it helps the bloodthirsty crowd who are rightfully upset, but thinking irrationally. Exclamations of "That son of a bitch is going to burn in hell!" or "Kill him, he deserves to die for what he did!" are rightfully difficult to ignore."

It has nothing to do with that. The law has to have meaning. If we make laws that we do not enforce, we might as well have none. If the individual in society has no security, no reassurance that anyone who violates him or her will be removed from society--then there is no point in having a society, and we might as well go back to the Hobbesian state of nature--"solitary, poor, nasty, brutish, and short."

"Finally, put yourselves in my shoes, you think, "Oh no! Now we have to put all of these convicted offenders somewhere, we've got to find the space, get the money and continue to get the money to run prisons to hold these thugs. This worries me too, but I still can't see how the death penalty is the correct solution."

The death penalty is the correct solution only if the society truly values the life of the innocent individual. If society is willing to treat people as part of some cost/benefit analysis, or treat them as a collective, or gives some people more rights than others, then there is no value in a death penalty, because the legal system becomes illegitimate in the first place, and no amount of punishment will help.

But if you have a system that values the individual and pledges to protect his inalienable rights, you must have an ultimate sanction for dealing with the violation of those rights. As long as it is possible that a child rapist could live out a sentence, move on in his life, and someday become a television talk show host (or, whatever--pick your positive life outcome), then the integrity of the violated child is at risk.

Imagine being violated by another person. Let's say (unlike in most rape cases--particularly date rape) that person is tried, convicted, and serves a sentence. After that point, our law says we have to treat them as though they are ordinary persons (except in jurisdictions where there are sex offender notification laws, which will surely be overturned if the current Court lasts another 5 years).

You, the violated person, have moved on in life. You are happy. You are well-adjusted. You have almost forgotten. You can almost trust people.

Then, without warning, one day your rapist turns up as your next door neighbor, or your professor, or your boss, or just a guy that you suddenly run into on the street. And there's nothing you can do about it.

Now you don't know when the next knock at the door will be him. When the shadow behind you will turn out to be him. When the voice on the phone will be him--or the mysterious hangup will be him trying to find out if you are home. You have no security. You have constant fear. It's not paranoia because you now know he really is out there somewhere. But it doesn't matter that you're not paranoid--because the fear itself is constant and crippling.

You are now the prisoner of your own life. You can't find a safe space, no matter where you go. Because he's out there. Somewhere. Waiting.

To attack you again.

And even if the rest of your life goes by and nothing ever happens, your life has been destroyed anyway because of the continuous free-floating anxiety and crippling fear that won't go away. While he moves on in life, carefree, in total control of his own life, without fear of being victimized, knowing the law will protect his rights, and content to have gotten away with taking YOUR innocence.

You think that's "justice?" That, actually, is how most rapes turn out because they are never reported, or the rapist is not convicted. But for those few where the rapist IS caught and convicted, doesn't society owe the victims a better outcome than the lifelong fear that the rapist will come back and do it again?

Better to permanently remove the rapist from the planet. Better for everyone--except the rapist. And that's just too bad for him. He should have thought of that before he destroyed a child's life.

Posted by Kerry [TypeKey Profile Page] at June 26, 2008 10:20 AM

Kerry,

Oh the solider thing, frankly I don't think most 18-20 year olds have a clue what they are getting into when they sign on the dotted line. Most have visions of glory, and honor in their heads, and probably like to shoot at things...but really don't know much more than that. Heck most of us don't know much more than that...and most of us never do, because the average person never has to watch their buddy explode before their eyes, or watch a 50 caliber bullet blow off their arm.

This is in fact one of the reasons I think we still have war, because young men don't have the knowledge to understand what their elders are sending them off to do.

Posted by ahmanrah [TypeKey Profile Page] at June 26, 2008 01:50 PM

SSE,

I in no way have a problem with your position. We just look at this particular situation differently.

Posted by ahmanrah [TypeKey Profile Page] at June 26, 2008 01:51 PM

No, they need to die because they freely CHOSE to take the functional life of another human being. Such an act disqualifies you from the benefits of civilized society.

hypothetical sit: what if the rapist was raped as a child and was disturbed by it. Do you still think he freely CHOSE to do what he did or was he disturbed from his previous experiences and somehow not fully responsible. Keep in mind, you've already justified killing someone because it ruins that childs life, now what happens when that disturbed child does the same thing, are they gonna be killed too? Tell me how that works...

Posted by Star Spangled Eagle [TypeKey Profile Page] at June 26, 2008 04:12 PM

All in all, the SC made the right decision, maybe some would like to see that person executed but since it's very hard to say for sure that's the right penalty, the person goes to jail. As for them being released, I am with you, they probably shouldn't, but I don't say kill em'just put em' in jail until their end.

Posted by Star Spangled Eagle [TypeKey Profile Page] at June 26, 2008 04:17 PM

A very clear usurpation of the 10th Amendment rights of the People of Louisiana.

This, like many other things the Supremes seem to wish to pole their noses into, is a very clear STATE ISSUE.

Posted by Sarge [TypeKey Profile Page] at June 26, 2008 04:56 PM

""No, they need to die because they freely CHOSE to take the functional life of another human being. Such an act disqualifies you from the benefits of civilized society.""

"hypothetical sit: what if the rapist was raped as a child and was disturbed by it."

There comes a time when, as an adult, you no longer have the right to blame your behavior on other people, even though they may be responsible for the way you feel. Behavior is CONTROLLABLE. If you cannot control your behavior, you should not be allowed any other right of adulthood.

"Do you still think he freely CHOSE to do what he did..."

Yes.

"...or was he disturbed from his previous experiences and somehow not fully responsible."

Even if you are "disturbed," you are still responsible for your behavior, unless you are judged to have diminished capacity--which is a defense, but does not serve to make you automatically innocent.

"Keep in mind, you've already justified killing someone because it ruins that childs life, now what happens when that disturbed child does the same thing, are they gonna be killed too? Tell me how that works..."

It works like this. If you rape a child, you die. If you rape a child and are acting under compulsion or diminished capacity, you MIGHT die. Those decisions are up to the jury. But the state should always have the option to offer the death penalty.

"All in all, the SC made the right decision, maybe some would like to see that person executed but since it's very hard to say for sure that's the right penalty, the person goes to jail. As for them being released, I am with you, they probably shouldn't, but I don't say kill em'just put em' in jail until their end."

But that's not the way it happens. They get out. And even while they are in, they are able to enjoy some semblance of a life, to get used to living in the total institution that is prison, to visit with friends and relatives, to become a lawyer, to write a book, to (in some cases) even win a Pulitzer prize. Meanwhile, the victim lives in fear that the rapist will get out, that someone else will rape them, that no one can be trusted, that the system doesn't work, that they can never have a relationship with anyone that will understand how they feel when someone touches them, or comes up behind them without warning, or talks to them in a certain tone of voice.

And then, when the rapist does get out, the victim can never feel safe. Never. Ever. Until the rapist is dead. And even then, the victim might not be able to believe it for quite a while.

Again I say, that's not *justice*.

"A very clear usurpation of the 10th Amendment rights of the People of Louisiana."

PRE-cisely.

"This, like many other things the Supremes seem to wish to pole their noses into, is a very clear STATE ISSUE."

And that's why we have to get the right people on the Court.

Posted by Kerry [TypeKey Profile Page] at June 26, 2008 07:43 PM

There comes a time when, as an adult, you no longer have the right to blame your behavior on other people, even though they may be responsible for the way you feel. Behavior is CONTROLLABLE.

If that were always true psychiatrists wouldn't exist. I would make exceptions regarding the death penalty for certain mental conditions, but that happens already anyway.

Posted by ahmanrah [TypeKey Profile Page] at June 27, 2008 02:14 PM

Ahmanrah,

Quite frankly, I think that people who CANNOT control their murderous (or, in this case, rapist) impulses should be first in line for the death penalty. I will concede that there should be allowances made for very young minors who are incapable of understanding their acts, but they should still be sent to a mental institution until the age of majority. However, adults who kill without remorse should be executed.

Posted by Kerry [TypeKey Profile Page] at June 27, 2008 05:51 PM

Kerry,

The problem is, if the person is insane, is it really their fault? God made them that way? So who do we really blame?

Or are you of the opinion that the insane can shed their insanity like you think homosexuals can?

Posted by ahmanrah [TypeKey Profile Page] at June 30, 2008 01:33 PM

"The problem is, if the person is insane, is it really their fault?"

That depends on what you mean by "fault." I do not believe there are adults who do not know right from wrong--there are, however, people who do not care.

"God made them that way?"

I know of no such case. Do we have proven cases of people who have been insane since birth?

"So who do we really blame?"

The person who committed the crime. The instrumentality of evil.

If a person cannot, regardless of consequence, refrain from doing evil, that person cannot be free to roam society. And if, in the opinion of the psychiatric community, they cannot be changed, they should be removed from this plane of existence.

The alternative is to give someone a free pass to commit whatever heinous acts they choose (or, in your assumption, are compelled) to engaged in. A civilized society cannot allow that to happen.

"I spent five years trying to reach him, and the next ten trying to keep him locked up."--Dr. Sam Loomis (Donald Pleasance) in John Carpenter's "Halloween," speaking of the psychopathic Michael Meyers.

But you can't "keep them locked up," can you? And for those we KNOW will only kill--or rape children--again, perhaps moving on to something worse, we should have the death penalty available to the state as a means of protecting society.

Posted by Kerry [TypeKey Profile Page] at June 30, 2008 02:03 PM