that weird sound heard earlier wasn't some odd weather pattern moving in; it was the collective sigh of relief from every child rapist in america...

There are a lot of daddies in jail, folks, and the lowest category of criminal is child molester. The Supreme Court, in eliminating the death penalty as an escape for child rapists, may have created an even worse punishment for them - daily rape at the hands of fellow prisoners for the rest of their natural lives, having their teeth knocked out of their mouths so that they can more fully "service" other prisoners, etc., etc. In jail, the rest of their natural lives may be short, ending in suicide as the only escape from a daily round of torture.

Gotta love that law of unintended consequences....

"The Supreme Court, in eliminating the death penalty as an escape for child rapists, may have created an even worse punishment for them - daily rape at the hands of fellow prisoners for the rest of their natural lives, having their teeth knocked out of their mouths so that they can more fully "service" other prisoners, etc., etc. In jail, the rest of their natural lives may be short, ending in suicide as the only escape from a daily round of torture."

Sure hope you're right, Ruvy.

Ruvy,

Very good point, that is so often missed by those that seek death so very easily as a form of punishment. Additionally, there is an argument to be made on the other side, that by allowing the death penalty for a crime that is not murder, it can often times lead to the perpetrator killing his victim so there is no witness. This too is often overlooked in those with such zeal to inflict death as a penalty for crimes that are not murder.

Dan, it's great that you've taken the job as in-house Counsel for BC. I've got one question for you, which might justify the Court's decision. Isn't the phrase "cruel and unusual punishment" sufficiently vague that it does evolve over time? This isn't like a six-year term in the Senate; it clearly could mean different things to different people. Isn't this the one clause which cannot be clarified by originalism?

i'm personally not looking for punishment; i'm looking for extermination...

a grown man who is old enough to understand what is going on even as he is being raped is not suffering -- on any level -- the same fate he inflicted on his child victiom...it's not a natural and logical consequence, it brings no justice, and it doesn't solve anything anymore than trapping a roach to a piece of sticky paper keeps that roach from escaping (or being released on good behavior, gag) nor does it keep other roaches from shitting on your food...

kill the roaches, all of them...the end...

"kill the roaches, "

And then, suppose one is exculpated later? How to restore him?

Baronius,

Yes, I think the concepts of right and wrong do evolve (or devolve) over time, and Yes, I think that our criminal laws should be reevaluated from time to time in light of current and common morality and technology. At one time, people were hung (hanged?) for many and various offenses. Over time, electric chairs, gas chambers and lethal injection became available and were used. I suspect that most people no longer support hanging or otherwise executing burglars or even horse thieves (as to the latter, I am probably in the minority), unless the crime is really aggravated. The folks charged with reevaluating these matters from time to time are our elected legislators, who theoretically represent the will of the people. That's one of their proper functions.

The Kennedy court, however, usurped the reasonable judgments not only of the Louisiana legislature but of all other domestic legislative bodies, past, present and future by its blanket holding that no rapist of a child can ever, under any circumstances, constitutionally be executed by any Governmental authority unless the child's death resulted and was intended to result. It did so on the basis of a preposterous analysis of what the people think right.

The Court's unrestrained propensity to do this sort of thing unnecessarily and inappropriately is scary; but, as I concluded in the article, there ain't one damn thing we can effectively do about it.

Dan

Ruvy,

I know. People who rape or otherwise molest children are often treated unkindly by their fellow inmates. So are people who aren't in that category. I can't personally shed many tears for lots of them.

Be that as it may, I consider extrajudicial punishment of this sort unacceptable as a viable substitute for law in what purports to be a civilized and lawful society.

Dan

And then, suppose one is exculpated later? How to restore him?

i am not in favor of exculpating child rapists...

Diana,

I think he meant exonerated...

The Court's unrestrained propensity to do this sort of thing unnecessarily and inappropriately is scary; but, as I concluded in the article, there ain't one damn thing we can effectively do about it.

I remember my political science professor pointing out that Supreme Court decisions are subject to the system of checks and balances: they can simply be ignored.

Doc,

You are correct, up to a point. Assume however, if you will, the following scenario: Louisiana ignores the Court's decision and shortly before his execution Mr. Kennedy, the convicted rapist, seeks habeas corpus by applying to the local Federal District Court. The District Court feels obliged to follow the Supreme Court's decision and holds that Mr. Kennedy must be produced, alive, and that he not be executed. The State of Louisiana tells the court to mind its own business. The court then holds the appropriate Louisiana officials in contempt and orders them to be jailed until the contempt is purged. I assume that a Federal Marshal or a court official could deliver the summons and, if appropriate, take the Louisiana official into custody.

As far as I know, nothing like this has happened. But it is entirely possible and might be fun, particularly to those who enjoy the spectacle of Constitutional crises. I would prefer not to see them occur.

Dna

But the daily prison rapes will merely prepare them for the afterlife, where they get prison rapes from the world's most famous child rapists. My fear is if they can't be executed, they'll grow to enjoy the prison rapes here on earth, then be sorely disappointed when their Hell rapes don't have nearly the amount of love vs. the ones on earth. And that's just a feeling of guilt I can't live with.

@#13:

I kinda figured it couldn't be done with impunity...

Dan - I don't believe that right and wrong change over time, and I'm not crazy about the whole idea of a living Constitution. It just seems like "cruel and unusual" is a floating concept in a way that for example "right to bear arms" isn't. There are a few clauses in the Constitution that are flexible, like "excessive" bail and fines.

You made a great point about how this ruling prevents any future evolution. It really is a stupid decision. But could that one point, about evolving standards of decency, be correct?

The whole idea of the 8th amendment is that punishment be proportional to the crime committed. It seems to me that in this decision the justices threw in a whole bunch of bullshit explanations for their decision, rather than relying on the only legally sound point they have.

Which is, of course, the absence of premeditation or intent to cause death. That has always been a dividing line between first and second degree murder, and that line doesn't take the age or innocence of the victim into consideration and probably shouldn't.

However, I don't see why a state can't legislatively assign the death penalty to second degree murder when aggravating circumstances apply, as in the case of a particularly heinous crime like child rape leading to death.

Dave

I know. People who rape or otherwise molest children are often treated unkindly by their fellow inmates. So are people who aren't in that category. I can't personally shed many tears for lots of them.

Be that as it may, I consider extrajudicial punishment of this sort unacceptable as a viable substitute for law in what purports to be a civilized and lawful society.

The key word in your message here is the word purports. American society is nowhere near as lawful or as civilized as it purports to be. What it is (or to be precise, what it has been) is prosperous, and this prosperity has been able up to now to cover up and ameliorate the barbarism found elsewhere in the world, like China, the Indian subcontinent, Latin America, Africa and the Middle East. A full belly prevents a lot of evil from happening out of desperation for food, like selling off the kids to be slaves, etc.

These issues seem unrelated, but they are not anywhere near as unrelated as they seem. Powerless people use physical strength and sex to exert power they do not really have: this is at the root of much of slavery and at the root of much of rape as well. Since in jails, physical strength is at a premium, the cold realities of human existence are driven home - with far less of the patina of what is called jokingly "civilization".

Nice post Ruvy

Thanks Paul,

I've pointed out elsewhere that policy wonks usually have to be power wonks, and as long as we live in the "world of lies" this will continue to be true. Mao tze Dung stated the bald truth when he said that power comes out of the barrel of a rifle. It does. Cops are just a gang, often not too different from other gangs (particularly in this part of the world) with a license from a gang of thugs called "the government" to kill, beat and brutalize the public under certain circumstances.

Strip away the patina of "civilization" and in any given courtroom the most powerful person to emerge is not the judge, or even the lawyers, but the bailiff with the gun. His gun, and his ability to call for other cops with guns for back-up, are what give the judge and the lawyers who call themselves "officers of the court" the authority they so often take for granted.

When you are a policy wonk forced to become a power wonk, you strip away the layers of bullshit rhetoric surrounding institutions and come to these inevitable conclusions.

Baronius,

I agree that standards of decency evolve (or devolve), and think that they change differently and at different speeds at different times and in different places. What is now considered decent in West Sweet Jesus, Georgia is quite likely different from what is now considered decent in New York City or Chicago. The only circumstance I can think of in which prior restraints on freedom of speech, for example, can be imposed involves obscenity, which is defined in terms of contemporary local standards. I can think of no valid reason why the concept of "cruel and unusual punishment" should be different and why other than contemporary local standards should apply. There are obvious exceptions. For example, were Tennessee to impose the death penalty for J-walking, with execution by immersion in boiling oil, it would quite properly be slapped down by the Court. I do not think that Louisiana put herself in an even remotely comparable position by permitting a jury to impose the death penalty for the aggravated rape of a small child.

Although the Constitution has some wiggle room for interpretation and is capable of amendment, the former needs to be done with great restraint and caution; the latter is quite difficult and cumbersome.

Laws enacted by the various states are more likely to reflect contemporary local standards where and when they apply than those "interpreted" into (or out of) existence by unelected judges whose terms are for life.

So, Yes, I agree that there need to be changes from time to time, and that the Supreme Court has an important role to play. However, I think that it should use judgment, muck around with these things as little as possible, and act with restraint rather than give vent to the personal preconceptions of a majority of its members.

Dan

Excellent point, Dan.

Too often these days, the principle incorporated in the very name of this country is ignored or subverted; we are (and were intended to be) a confederation of independent states, loosely banded together to achieve such goals as mutual defense which would be difficult if not impossible for each individual state.

Everywhere but in the USA, "state" refers to a sovereign nation, as it did in the beginning here.

The entire federal government, but especially SCOTUS, needs to keep that point in mind when dealing with the states individually.

"contemporary local standards," as long as congruent with the overarching principles set forth in the constitution, should always be the base line from which SCOTUS should anchor its decisions.

Good post and comments. It's so good, I have nothing to offer.

Chemical castration...is that cruel and unusual too?

wdufkin (#24) This may be slightly off-topic, but I have an issue with chemical castration: whether or not it's cruel and unusual punishment, it's certainly misguided. Child rape isn't primarily about sex, it's about power and control. The same is true to a lesser extent with all rape.

The point is that killing a rapist's sex drive doesn't do anything to the urges that prompted him to rape in the first place, because they're not primarily sexual urges.

Some argue that the power/control impulses are similarly testosterone-driven, which would support the idea of chemical castration, but I think the science is still out on that.

Chemical castration makes us feel satisfied, as would physical castration or, well, the death penalty, but I'm not sure it's actually effective.

Consider Governor Huckabee and Wayne Dumond. Dumond was *physically* castrated in prison, and Huckabee released him. He later raped and murdered one woman (convicted), and maybe two.

Consider Governor Huckabee and Wayne Dumond. Dumond was *physically* castrated in prison, and Huckabee released him. He later raped and murdered one woman (convicted), and maybe two.

"Chemical castration makes us feel satisfied, as would physical castration or, well, the death penalty, but I'm not sure it's actually effective."

Point taken, Phillip. However, execution does at least stop that particular individual from repeating.

I used to think that chemical castration was a great idea, until I heard an FBI behavioralist talk about it. He basically said what Phillip said. Chemical castration just makes a person impotent and angry about it. You take a person with no self-control, whose identity is so closely tied to his sexuality, and permanently enrage him. You've only changed the crimes he's likely to commit.

Dan, thanks for the reply. The Constitution may give the Court some wiggle room, but this ruling makes sure that all future wiggling is done in the Court-approved direction.