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“Shake off all the fears of servile prejudices, under which weak minds are servilely crouched. Fix reason firmly in her seat, and call on her tribunal for every fact, every opinion. Question with boldness even the existence of a God; because, if there be one, he must more approve of the homage of reason than that of blindfolded fear.”     Thomas Jefferson

June 25, 2008

The Death Penalty, Child Rape, And The Supreme Court

by Doug Mataconis

Today, the Supreme Court ruled in a 5-4 decision that a Louisiana law allowing the death penalty for rape of a child even when it doesn’t result in death is unconstitutional:

A divided Supreme Court ruled today that it is unconstitutional to execute someone who rapes a child but does not kill the victim.

In a 5 to 4 decision, the court struck down a Louisiana law that had authorized the death penalty for anyone who rapes a child under the age of 12. Of 3,300 inmates on death row across the country, only two face capital punishment for a crime other than murder. Both were convicted under Louisiana’s law, the broadest in the land. There has not been an execution for rape in the United States since 1964.

Justice Anthony M. Kennedy joined the court’s more liberal members in continuing the court’s trend of narrowing the number of criminals eligible for death. He wrote that the harm caused a child who is raped is “grave,” but “cannot be quantified in the same way as death of the victim.”

Says who ? Well, apparently, 5 of the 9 unelected men and women in black robes say so.

And that, I think, is what’s really wrong with this decision.

Make no mistakes, the doubts that I harbor about capital punishment to begin with would probably cause me to vote against any effort to expand the death penalty to crimes beyond first degree murder, but that’s a question for a legislator, not a judge. Unfortunately, the legislator-as-judge is something that is far too common and it’s something we see on both sides of the political spectrum notwithstanding the right’s continual repetition of the phrase “judicial restraint.

As Orin Kerr points out, Justice Alito does a fairly good job of pointing out the real problem with today’s decision in his dissent:

A major theme of the Court’s opinion is that permitting the death penalty in child-rape cases is not in the best interests of the victims of these crimes and society at large. In this vein, the Court suggests that it is more painful for child-rape victims to testify when the prosecution is seeking the death penalty. Ante, at 32. The Court also argues that “a State that punishes child rape by death may remove a strong incentive for the rapist not to kill the victim,” ante, at 35, and may discourage the reporting of child rape, ante, at 34–35.
These policy arguments, whatever their merits, are simply not pertinent to the question whether the death penalty is “cruel and unusual” punishment. The Eighth Amendment protects the right of an accused. It does not authorize this Court to strike down federal or state criminal laws on the ground that they are not in the best interests of crime victims or the broader society. The Court’s policy arguments concern matters that legislators should—and presumably do—take into account in deciding whether to enact a capital child-rape statute, but these arguments are irrelevant to the question that is before us in this case. Our cases have cautioned against using “ ‘the aegis of the Cruel and Unusual Punishment Clause’ to cut off the normal democratic processes,” Atkins v. Virginia, 536 U. S. 304, 323 (2002) (Rehnquist, C. J., dissenting), in turn quoting Gregg v. Georgia, 428 U. S. 153, 176 (1976), (joint opinion of Stewart, Powell, and STEVENS, JJ.), but the Court forgets that warning here.

Alito, I think, get’s it 100% right. It isn’t the Supreme Court’s job to second guess a particular state’s determination that raping an 8 year old girl, in this case your 8 year old stepdaughter, is not a sufficiently heinous crime to justify the death penalty. That decision belongs to the people, acting through their legislators.

Far more clearly than most may realize, this decision lays bare what has gone so terribly wrong with Constitutional jurisprudence in this country over the past 50 years or so.

Originally posted at Below The Beltway

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14 Comments

  1. Doug, you raise some very good points as to what the role of the court should be and technically, you are probably right. “Cruel and unusual punishment” is an evolving standard that is not spelled out in the Constitution but is left to be defined by “the people” or *possibly* by the courts (that’s my lay understanding anyway, I’m sure you can set me straight wherever I’m wrong). The state legislatures are probably better suited than the courts to make this determination.

    My problem is we are talking about the state killing people. It’s taken me a long time to come around to this position but I think the death penalty is immoral for a variety of reasons. The main reason I oppose the death penalty is that I simply do not trust our system or the government with the power to kill someone. Cases such as Cory Maye and Genarlow Wilson and the findings of The Innocence Project, come to my mind as examples of how unjust and flawed our system can be. If I were sure that the guilty was convicted 100% of the time, I would not have much problem at all with the death penalty. If even ONE person is wrongfully executed by the state, that one innocent person is far too many. A wrongfully executed individual cannot ever be brought back; at least with incarceration the innocent can be set free.

    Perhaps the court made the right decision for the wrong reasons (I have not read the opinion yet so I cannot be sure at this point) but I would prefer that if the court should err it should err on the side of life.

    Comment by Stephen Littau — June 25, 2008 @ 4:32 pm
  2. I was shocked when I read about this decision. the court made an argument that was absolutely incompatible with the one it made a few years ago upholding the constitutionality of the Sonny Bono copyright act.

    There the majority argued that while the law was manifestly unwise, Congress had authority to set copyright terms to whatever arbitrary value they wanted to and that was where the court’s oversight ended.

    While I am strongly opposed to capital punishment, and so would like to see the death penalty abolished in all cases – including cases where people rape children to death – I think the court really erred in the reasoning they used to arrive at this judgment.

    Comment by tarran — June 25, 2008 @ 4:35 pm
  3. Stephen,

    Why should “cruel and unusual punishment” be subject to anymore of an evolving standard than any other provision of the Bill of Rights or the Constitution ?

    When the 8th Amendment was passed, and for a good period afterwards, you could be put to death for several crimes that had nothing to do with murder including, according to what I’ve read, horse theft. Moreoever, the types of execution used back then were arguably far more painful and gruesome than the relatively benign lethal injection common in most states. Based on that, I find it hard to believe that the Founders would have found the idea of executing a man who rapes his 8 year old stepdaughter all that cruel or unusual.

    I share your concerns about the criminal justice system wrongly convicting people, mostly because I’ve seen how that system works up close long enough to know it’s far from being as good as it could be. And crimes involving sexual assault on children are frequently ones where someone is wrongfully accused — witness the McMartin pre-school case from back in the 1980s.

    If I had been in the Louisiana legislature when this bill came up, I would most likely have voted against it because of that.

    From a legal point of view, however, I don’t see how prescribing execution as a possible punishment in a case like the one at issue is per se unconstitutional.

    The Court made the wrong decision today because it made a decision it didn’t have the authority to make, IMO.

    Comment by Doug Mataconis — June 25, 2008 @ 4:49 pm
  4. tarran,

    Of course the standards applied in criminal cases are different from those applied in copyright law cases, but you make an excellent point nonetheless.

    I am far from being a majoritarian, but the Constitution reserves certain issues for the legislature and the states and this, I think, is one of them.

    Comment by Doug Mataconis — June 25, 2008 @ 4:50 pm
  5. Stephen,

    Cruel and unusual punishment” is an evolving standard that is not spelled out in the Constitution but is left to be defined by “the people” or *possibly* by the courts (that’s my lay understanding anyway, I’m sure you can set me straight wherever I’m wrong). The state legislatures are probably better suited than the courts to make this determination.

    There’s a difference between having something decided by “the people” and having the Supreme Court impose it’s one definitions on the nation as a whole, don’t you agree ?

    Comment by Doug Mataconis — June 25, 2008 @ 4:52 pm
  6. Doug:

    All good points. The reason I say that “cruel and unusual” is an evolving standard is because the founders did not specify what they meant to be cruel and unusual. I believe they did so intentionally so that each generation could make their own determinations. Clearly, what was acceptable punishment for the death penalty in their time would be considered by most as cruel and unusual today.

    Comment by Stephen Littau — June 25, 2008 @ 5:30 pm
  7. Stephen,

    True.

    There is a line somewhere. The guillotine would not be acceptable under the 8th Amendment, for example, IMO, nor would a law permitting execution for jaywalking or drunk driving.

    The question we should ask, though, is how the Founders intended that an evolving standard of what acceptable punishment is should be implemented.

    Remember that, until Marbury v. Madison in 1801, the very idea of judicial review didn’t even exist so I don’t think it’s fair to say that the Founders intended that the Supreme Court, or the lower Federal Courts, would have a primary role in determining what “cruel and unusual” meant, or in deciding that a particular form of punishment is no longer acceptable.

    I think they would say that that is what the legislature is for.

    Comment by Doug Mataconis — June 25, 2008 @ 5:36 pm
  8. And to your last point, I know that neither of us are fans of mob rule (a.k.a. democracy). Sometimes the courts are right to go against the prevailing wisdom of the majority (hopefully, the judges do so based on the Constitution and the law).

    Comment by Stephen Littau — June 25, 2008 @ 5:36 pm
  9. The question we should ask, though, is how the Founders intended that an evolving standard of what acceptable punishment is should be implemented.

    I think that is a very important debate which should be had. I simply do not know the answer.

    Comment by Stephen Littau — June 25, 2008 @ 5:40 pm
  10. I think there is another fundamental question that should be asked: when, if ever, should the government have the authority to take a life? That seems to be the question the majority of the court was trying to answer (though again, I am only basing this on reports I have read/heard; I haven’t read the ruling itself).

    Comment by Stephen Littau — June 25, 2008 @ 5:45 pm
  11. Remember that, until Marbury v. Madison in 1801, the very idea of judicial review didn’t even exist so I don’t think it’s fair to say that the Founders intended that the Supreme Court, or the lower Federal Courts, would have a primary role in determining what “cruel and unusual” meant, or in deciding that a particular form of punishment is no longer acceptable.

    I think they would say that that is what the legislature is for.

    You’re probably right on that as well, but we both are well aware of the law of unintended consequences. We have to remember that even as wonderful as our Constitution is, it was written by men and interpreted by men. Because men are flawed, sometimes the reasoning will also be flawed (you could argue that my reasoning is flawed on this issue). All the more reason why I do not trust the state with killing.

    Comment by Stephen Littau — June 25, 2008 @ 5:57 pm
  12. I think of the prosecutions we have had in this country when child abuse hysteria runs rampant. These kind of cases have not aways been clear.

    Comment by VRB — June 26, 2008 @ 5:31 am
  13. “Remember that, until Marbury v. Madison in 1801, the very idea of judicial review didn’t even exist so I don’t think it’s fair to say that the Founders intended that the Supreme Court, or the lower Federal Courts, would have a primary role in determining what “cruel and unusual” meant, or in deciding that a particular form of punishment is no longer acceptable.”

    This is a common belief, but I don’t think it’s accurate. From Federalist #78 (Hamilton):

    “[T]hough individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter….The complete independence of the courts of justice is peculiarly essential in a limited constitution. By a limited constitution I understand one which contains certain specified exceptions to the legislative authority: such for instance as it shall pass no bills to attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of the courts of justice; whose duty it must be to declare all acts contrary to the manifest tenor of the constitution void. Without this, all the reservations of particular rights and privileges would amount to nothing.”

    This passage pretty clearly spells out an assumption that judicial review was a fundamental part of the Constitution even if it was not explicitly stated.

    Anywho, I have a problem with the passage in the opinion regarding the effect of the death penalty on victims – it strikes me as completely irrelevant to the question of whether the death penalty, as applied in this instance, is “cruel and unusual.”

    That said, the concept of an evolving standard is, I think, implied by the phrase “cruel and unusual.” The phrase requires that for a penalty to be unconstitutional, it must be both cruel and unusual. There should be little doubt that a death penalty is always or almost always “cruel.”

    So the inherent question in any 8th Amendment death penalty case has to be whether the penalty is “unusual.” The very word “unusual” implies a comparison with something else, and it is a perfectly valid act of judicial interpretation to try to discern what, exactly, that “something else” is. For me personally, I think it would be absurd to make that “something else” the accepted criminal penalties of 1789. Instead, I think it is a far more appropriate interpretation of the word “unusual” to say that it means “unusual” in comparison to current practices.

    Comment by Mark — June 26, 2008 @ 7:53 am
  14. [...] think in some ways it’s a poor decision (The Liberty Papers convincingly make the case here), but legitimately poor, if that makes any sense. I think the philosophical justification for [...]

    Pingback by The Crossed Pond » The Other Supreme Court Decision — June 26, 2008 @ 1:42 pm

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