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The Supreme Court (Five to Four) Says That The Answer is Blowin’ in the Wind

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On 25 June, 2008, the Supreme Court held, five to four, that  child rape, no matter how brutal, vicious and damaging to the child, cannot be punished by death unless it results in the death of the child, and was intended to do so. Note the use of the conjunctive, rather than the disjunctive. If the rape was intended to, but did not result in, death of the child, the death penalty is disproportionate. The primary basis cited by the Court is that societal views have changed to the point that the death penalty is viewed as unacceptable by "the people," and therefore violative of the Eighth Amendment to the U.S. Constitution.

Once again, the Supreme Court has taken on the mantle of Supreme Legislator. Regardless of one's personal views on the death penalty, or its appropriateness in various circumstances, the Supreme Court grossly overstepped its proper bounds. And, once again, the Supreme Court made a pig's breakfast of the Law and, indeed, of its own rights and duties under the law.

Mr. Justice Kennedy, in Kennedy vs. Louisiana (no relation, presumably) wrote the opinion in which Justices Stevens, Souter, Ginsburg, and Breyer joined. Mr. Justice Alito wrote a dissenting opinion, in which Mr. Chief Justice Roberts, and Justices Scalia and Thomas joined.

The Majority Opinion observes,

Petitioner’s crime was one that cannot be recounted in these pages in a way sufficient to capture in full the hurt and horror inflicted on his victim or to convey the revulsion society, and the jury that represents it experienced.

The Court continued,

An expert in pediatric forensic medicine testified that the injuries inflicted upon [the eight year old stepdaughter of the rapist] 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. 

The Court nevertheless concluded that the rape did not rise (or, perhaps, fall) to the level of intentional murder, and that for any crime against a person, only murder in the first degree warrants the death penalty. The Court expressly did not opine on crimes not against a person:

Our concern here is limited to crimes against individual persons. We do not address, for example, crimes defining and punishing treason, espionage, terrorism, and drug kingpin activity, which are offenses against the State.

In passing, the Court noted

in Tison v. Arizona, 481 U. S. 137 (1987), the Court allowed the defendants’ death sentences to stand where they did not themselves kill the victims but their involvement in the events leading up to the murders was active, recklessly indifferent, and substantial.

The Court opined that it makes no difference whether the crime committed on the rapist's eight year old stepdaughter was of the sort which the Founding Fathers contemplated in 1791, when the Eighth Amendment was adopted, but that "the evolving standards of decency that mark the progress of a maturing society" control. The Court then set itself up to decide what those "evolving standards of decency" are. This is the crux of the Court's decision, and it is also the crux of the problem with the decision.

The Court relied heavily upon Coker v. Georgia , 433 U. S. 584 (1977), which held that the death penalty is disproportionate in the rape of an adult, regardless of the circumstances, provided only that death is neither intended nor results. The Court noted that subsequent to this stellar decision, few states had passed statutes permitting imposition of the death penalty even in the case of the most egregious of child rapes. It acknowledged that the Coker decision may possibly have impacted on this failure to pass legislation permitting the death penalty in such cases, but rejected the notion that the Court's own ambiguity (perish the thought — the Court is incapable of ambiguity) may have contributed to misunderstandings of the meaning of Coker,. It concluded that there is a national consensus against capital punishment for the crime of child rape.

There are a number of make-weights in the Court's decision, as quite properly pointed out in Mr. Justice Alito's dissent. For example, the Court points out how terrible it must be for a small child to testify in a rape trial, forgetting that it must be no less terrible regardless of whether the death penalty is an option. The Court also points out that were child rape to continue to be a capital offense, there would be too many capital cases:

The crime of child rape, considering its reported incidents, occurs more often than first-degree murder. Approximately 5,702 incidents of vaginal, anal, or oral rape of a child under the age of 12 were reported nationwide in 2005; this is almost twice the total incidents of intentional murder for victims of all ages (3,405) reported during the same period.

Not only that, but child rape is so horrific that juries might lose their way and act irrationally. The Court continued,

[i]n this context, which involves a crime that in many cases will overwhelm a decent person’s judgment, we have no confidence that the imposition of the death penalty would not be so arbitrary as to be “freakis[h]” . . . We cannot sanction this result when the harm to the victim, though grave, cannot be quantified in the same way as death of the victim.

The Court also opined that some small children lie (there is no suggestion that that happened in Kennedy or that the jury's decision on the merits was incorrect or even dubious). And, of course, "a State that punishes child rape by death may remove a strong incentive for the rapist not to kill the victim."

In the dissent, which anyone interested in understanding the Court's decision should read before making up his mind, Mr. Justice Alito summarized the Court's decision as follows:

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. The Court provides two reasons for this sweeping conclusion: First, the Court claims to have identified “a national consensus” that the death penalty is never acceptable for the rape of a child; second, the Court concludes, based on its “independent judgment,” that imposing the death penalty for child rape is inconsistent with “‘the evolving standards of decency that mark the progress of a maturing society.’”

This is a very fair summary of what the Court did.

One point not raised, even in the dissenting opinion, is that in a civilized society lynchings are almost universally seen as bad. One of the reasons for this is a belief that the legal system will administer just punishment to those found guilty. By shielding those properly convicted of the most heinous crimes from the death penalty, the Supreme Court has undermined this belief. In doing so, it may have encouraged otherwise decent people to take the law into their own hands. Those who do so are unlikely to provide due process, and innocent people incorrectly believed to have committed heinous crimes may well suffer.

The death penalty may or may not be justifiable in any circumstances. I happen to think that there are circumstances in which it is justified, but what I think about this does not matter; I am neither a legislator, a judge, nor a part of the law enforcement apparatus. What does matter, however, and what is most important to me because of its long term ramifications, is whether the Supreme Court here, as in other recent cases, grossly overstepped its bounds and substituted its perceptions of what "the people" want for the perceptions of those charged with answering that question. The Kennedy decision was a very bad one, and it will come back to haunt not only the Court but the country for years to come.

What can "the people" who are concerned about the Kennedy do about it? Not a damn thing.

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About Dan Miller

  • http://blogcritics.org/writer/diana_hartman Diana Hartman

    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…

  • Ruvy

    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….

  • Clavos

    “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.

  • Pablo

    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.

  • Baronius

    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?

  • http://blogcritics.org/writer/diana_hartman Diana Hartman

    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…

  • bliffle

    “kill the roaches, ”

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

  • http://blogcritics.org/writer/dan_miller Dan Miller

    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

  • http://blogcritics.org/writer/dan_miller Dan Miller

    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

  • http://blogcritics.org/writer/diana_hartman Diana Hartman

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

    i am not in favor of exculpating child rapists…

  • Clavos

    Diana,

    I think he meant exonerated…

  • http://drdreadful.blogspot.com Dr Dreadful

    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.

  • http://blogcritics.org/writer/dan_miller Dan Miller

    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

  • http://www.futonreport.net/ Matthew T. Sussman

    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.

  • Clavos

    @#13:

    I kinda figured it couldn’t be done with impunity…

  • Baronius

    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?

  • http://www.republicofdave.com Dave Nalle

    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

  • 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.

    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”.

  • Pablo

    Nice post Ruvy

  • 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.

  • http://blogcritics.org/writer/dan_miller Dan Miller

    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

  • Clavos

    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.

  • http://www.associatedcontent.com/user/39420/joanne_huspek.html Joanne Huspek

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

  • wdufkin

    Chemical castration…is that cruel and unusual too?

  • http://blogcritics.org/ Phillip Winn

    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.

  • http://blogcritics.org/writer/dan_miller Dan Miller

    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.

    The recidivism rate is remarkably low among those who have been executed.

    Dan

  • Clavos

    “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.

  • Baronius

    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.

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