Baseball Crank
Covering the Front and Back Pages of the Newspaper
June 25, 2008
LAW/POLITICS: 5-4 Supreme Court: Raping A Child Not Really As Bad As Democracy

The Supreme Court today, in Kennedy v. Louisiana, found that the Eighth Amendment bars the death sentence of a man who brutally raped his 8-year-old stepdaughter, causing traumatic physical injury (decency doesn't permit quoting here the Court's discussion of the facts on p. 2 of its opinion), to say nothing of the emotional trauma. The decision was 5-4, with Justice Kennedy writing the opinion joined by the Court's liberal bloc. The decision is significant in three major main ways:

1. It essentially bars the death penalty in all cases that do not result in the death of the victim, with the exception of "offenses against the State."

2. It explicitly confirms that the Court's reliance on an 'evolving national consensus' against the death penalty in specified circumstances is truly a one-way street; the Court frankly admits that unless there is strong evidence of a national consensus favoring the death penalty for a particular crime at a particular time, the Court will permanently bar every state from using the democratic process to impose such a penalty at any time in the future.

3. It rejects the notion that state legislatures are competent to come up with any sort of safeguards, a conclusion much in line with the Court's recent view that Congress is incapable of determining procedures for the handling of alleged enemy combatants. The assertion of judicial supremacy inherent in this conclusion is staggering.

1. No Death Penalty For Non-Homicide Crimes

Justice Kennedy's opinion began with a decidedly ahistorical reading of the Eighth Amendment, a document written at a time when basically all felonies were punishable by death:

[P]unishment is justified under one or more of three principal rationales: rehabilitation, deterrence, and retribution....It is the last of these, retribution, that most often can contradict the law's own ends. This is of particular concern when the Court interprets the meaning of the Eighth Amendment in capital cases. When the law punishes by death, it risks its own sudden descent into brutality, transgressing the constitutional commitment to decency and restraint.

Applying this view of the death penalty's permissible scope, the Court concluded that the rape of a child just isn't bad enough to justify an execution:

It must be acknowledged that there are moral grounds to question a rule barring capital punishment for a crime against an individual that did not result in death. These facts illustrate the point. Here the victim's fright, the sense of betrayal, and the nature of her injuries caused more prolonged physical and mental suffering than, say, a sudden killing by an unseen assassin. The attack was not just on her but on her childhood. For this reason, we should be most reluctant to rely upon the language of the plurality in Coker, which posited that, for the victim of rape, "life may not be nearly so happy as it was" but it is not beyond repair. ... Rape has a permanent psychological, emotional, and sometimes physical impact on the child. ...We cannot dismiss the years of long anguish that must be endured by the victim of child rape. It does not follow, though, that capital punishment is a proportionate penalty for the crime. The constitutional prohibition against excessive or cruel and unusual punishments mandates that the State's power to punish "be exercised within the limits of civilized standards."

Note that the Court offers no further explanation of why the death penalty is disproportionate to such a horrible crime. The Court's expressed concern for the awfulness of child rape is just so much window-dressing, to be given no real analytical weight against the ipse dixit of the present state of five 'consciences':

Consistent with evolving standards of decency and the teachings of our precedents we conclude that, in determining whether the death penalty is excessive, there is a distinction between intentional first-degree murder on the one hand and nonhomicide crimes against individual persons, even including child rape, on the other. The latter crimes may be devastating in their harm, as here, but "in terms of moral depravity and of the injury to the person and to the public," ...they cannot be compared to murder in their "severity and irrevocability."

+++

Evolving standards of decency that mark the progress of a maturing society counsel us to be most hesitant before interpreting the Eighth Amendment to allow the extension of the death penalty, a hesitation that has special force where no life was taken in the commission of the crime. It is an established principle that decency, in its essence, presumes respect for the individual and thus moderation or restraint in the application of capital punishment.

The Court left for another day, however, the death penalty as applied to crimes that extend beyond individual victims:

We do not address, for example, crimes defining and punishing treason, espionage, terrorism, and drug kingpin activity, which are offenses against the State.

Now, personally, I have a good deal of sympathy with the idea that, for a variety of reasons, the death penalty is best employed against these sorts of crimes. But it's revealingly statist as well as inhumanly insensitive and legally nonsensical to impose a rule of Constitutional dimension that says that dealing drugs is worse than raping a child.

2. Democracy Stops Here

The real challenge in Kennedy, as I have noted for some time, is that unlike prior decisions that restricted the use of the death penalty against the mentally retarded or underage offenders based on an alleged 'evolving national consensus,' - a position that, in flagrant violation of Article V's express provision for how a specific number of state legislatures may change the meaning of the Constitution through the amendment process - in this case, the trend, however modest, has been for states to add the death penalty for crimes like child rape.

The Court examined the evidence of such movement and found it - like so many things in the democratic process - fitful and inconclusive:

The evidence of a national consensus with respect to the death penalty for child rapists, as with respect to juveniles, mentally retarded offenders, and vicarious felony murderers, shows divided opinion but, on balance, an opinion against it. Thirty-seven jurisdictions - 36 States plus the Federal Government - have the death penalty. As mentioned above, only six of those jurisdictions authorize the death penalty for rape of a child. Though our review of national consensus is not confined to tallying the number of States with applicable death penalty legislation, it is of significance that, in 45 jurisdictions, petitioner could not be executed for child rape of any kind. That number surpasses the 30 States in Atkins and Roper and the 42 States in Enmund that prohibited the death penalty under the circumstances those cases considered.

In general, this sort of nose-counting is precisely the stuff of the democratic process and no business of the judiciary. But the Court determines that there are simply not enough states to stand in its way:

Respondent insists that the six States where child rape is a capital offense, along with the States that have proposed but not yet enacted applicable death penalty legislation, reflect a consistent direction of change in support of the death penalty for child rape. Consistent change might counterbalance an otherwise weak demonstration of consensus. .... But whatever the significance of consistent change where it is cited to show emerging support for expanding the scope of the death penalty, no showing of consistent change has been made in this case.

How does the Court respond to the lack of a consensus? By finding that a consensus to the contrary must exist!

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.

Well, as long as five Justices count the votes, what are you going to do about it? The majority expressly rejects the idea that the messy business of finding consensuses should be left to the representatives of the people whose "consensus" is being announced, and instead announces a default presumption against the death penalty wherever a clear national consensus does not exist in its favor, regardless of the consensus within individual states:

[The difficulty of determining the direction of the states] has led some Members of the Court to say we should cease efforts to resolve the tension and simply allow legislatures, prosecutors, courts, and juries greater latitude. ...Our response to this case law, which is still in search of a unifying principle, has been to insist upon confining the instances in which capital punishment may be imposed.

Note that the lack of "a unifying principle" does not restrain the Court from reaching a conclusion that is both categorical and intended to be a permanent restraint on further evolution of the People's consensus:

Our determination that there is a consensus against the death penalty for child rape raises the question whether the Court's own institutional position and its holding will have the effect of blocking further or later consensus in favor of the penalty from developing. The Court, it will be argued, by the act of addressing the constitutionality of the death penalty, intrudes upon the consensus-making process. By imposing a negative restraint, the argument runs, the Court makes it more difficult for consensus to change or emerge. The Court, according to the criticism, itself becomes enmeshed in the process, part judge and part the maker of that which it judges. These concerns overlook the meaning and full substance of the established proposition that the Eighth Amendment is defined by "the evolving standards of decency that mark the progress of a maturing society."... Confirmed by repeated, consistent rulings of this Court, this principle requires that use of the death penalty be restrained. The rule of evolving standards of decency with specific marks on the way to full progress and mature judgment means that resort to the penalty must be reserved for the worst of crimes and limited in its instances of application.

The reference to "full progress and mature judgment" is a particularly ominous one for fans of popular self-government and limitation of the Court's powers to those enumerated by prior agreement of We the People.

Ironically, the Court also bats away the suggestion that some states may have feared to enact the death penalty due to suggestions in prior decisions that it could be struck down:

[R]espondent contends, it is possible that state legislatures have understood Coker to state a broad rule that covers the situation of the minor victim as well. We see little evidence of this. Respondent cites no reliable data to indicate that state legislatures have read Coker to bar capital punishment for child rape and, for this reason, have been deterred from passing applicable death penalty legislation. In the absence of evidence from those States where legislation has been proposed but not enacted we refuse to speculate about the motivations and concerns of particular state legislators.

Note that the Court is comfortable finding a consensus of the people, but not discerning the intentions of legislatures.

The position of the state courts, furthermore, to which state legislators look for guidance on these matters, indicates that Coker has not blocked the emergence of legislative consensus.

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We conclude on the basis of this review that there is no clear indication that state legislatures have misinterpreted Coker to hold that the death penalty for child rape is unconstitutional. The small number of States that have enacted this penalty, then, is relevant to determining whether there is a consensus against capital punishment for this crime.

3. Never Trust The Legislature

The final piece of the Court's holding that I'll deal with only briefly here is its concern that the death penalty could not be applied with sufficient safeguards to child rape, given the relative (national) rarity of its application:

Evolving standards of decency are difficult to reconcile with a regime that seeks to expand the death penalty to an area where standards to confine its use are indefinite and obscure.

Once again, the Court simply does not trust legislatures, unlike courts, to deliberate and develop rules and standards. But those state legislatures simply do not have five votes.

Posted by Baseball Crank at 11:35 AM | Law 2006-08 • | Politics 2008 | Comments (15) | TrackBack (0)
Comments

So I guess he only recourse if you are the victim's parent is to shoot the rapist yourself and then plead temporary insanity. Hell in my neck of the woods no jury would convict you. It's a shame we can't actually rely on the law for justice thanks to our new kings on the Supreme Court.

Posted by: The Deacon at June 25, 2008 12:16 PM

If the Justices responsible for Marbury v Madison could somehow be brought back to life, I wonder how they would view what I consider to be the unintended consequences of their decision. I just don't believe the Founders intended that the SC would function as a legislature.

Posted by: NRA Life Member at June 25, 2008 12:45 PM

I rather suspect that, if given the facts and allowed to vote, an actual majority would think that lethal injection in this case would be, not "cruel and unusual" but actually too good for the perpetrator. As Justice Kennedy and his cohorts apparently believe that their role is to act as a national moral weathervane (albeit one with the authority to do whatever the hell they feel like doing), I wonder if they'd be willing to put it to the test...

Posted by: Lyford at June 25, 2008 3:45 PM

Let's hear from you liberals, is this what you want? Is this how you think the liberal judges on the Supreme court should decide? Let's hear your views!

Posted by: Lee at June 25, 2008 8:52 PM

Once the constitution banned cruel and unusual punishment, it became implicit that the Supremes would have to judge what that means, and that is their job. Except, as they noted, in treason, where the Constitution is explicit.

Do I agree with them? No. For several reasons, the least of which is I as a taxpayer don't want to pay to support this animal. Do I realize why they did it? Yes. And as much as I would like to say it's up to the states, the C and U provision means it's not.

Posted by: Daryl Rosenblatt at June 25, 2008 8:53 PM

You want the death penalty? Fine. Put Bush, Cheny, Condi and Rummy in the electric chair. Murderers, all.

Posted by: jack at June 25, 2008 9:02 PM

To The Deacon...I agree with you. And, more power to those who chose to take the matter into their own hands. The supreme court is DEAD WRONG in this decision.
The reasonings for this horrible decision makes no sense.
These judges must never had a child of their own raped before.
If so, they would overwhelmingly believe that the victim does "die".
It may not be a physical death, but it is a psychological one. One that lasts a lifetime. Child predators literally take a child's life from them when they rape them.
The supreme court (intentionally lower-case) has made two horrible rulings of late, this one and the one in which they pretend that terrorists are Americans, thus entitled to our constitutional rights.
Funny, how they manipulate the consititution for their own end.
The majority that voted against capital punishment are liberals. Screw liberals. This idea that some predators can be rehabilitated or just misunderstood, victims themselves, and that is why they are what they are, is useless..
There are just some who can't be helped, and those are the child predators. They should never see the light of day again.
Our supreme court has just doomed the children in America as far as I am concerned. They have doomed our country with these stupid last two rulings.
But, I guess it is in step with these robed fools...Abortion is still the law of the land, afterall.
I hope that they don't rule against our right to carry guns....
I have been reading comments on all types of stories today on different websites and the theme that keeps coming up is a revolution in this country. And, I don't mean a peaceful one.
If the powers that be keep up what they are doing to this country, there will be a revolution, a bloody one at that.....
For the first time in my adult life, I am ashamed of my country!

Posted by: miriam at June 25, 2008 9:56 PM

"So I guess he only recourse if you are the victim's parent is to shoot the rapist yourself and then plead temporary insanity. "
and
"an actual majority would think that lethal injection in this case would be, not "cruel and unusual" "
and
"Let's hear from you liberals, is this what you want?"

I'll speak as a moderate-left(really, it's where I am). First, I think this was a poor decision. Obvious that it was going to happen if you look at the past 3 decades of case law, but still poor. No surprise it's Kennedy. The dissent is weak, as well, but I guess I should reread it.

The 2 reasons why this is good?
1) I have problems with the state killing someone, especially where there is only one witness. Too often there have been fake or wrong memories, especially in abuse cases. This case was not one of them - and I'm not sure where that would be with the burden of deciding death is in Georgia law.
2) Removing this makes it more likely that the child lives. A sick mind that works in a rational way would kill the child under the law that got struck down, since it removes the largest source of guilt. It won't always stop the murder, but it might.
Not relevant to the 8th, but relevant as a whole.

"this one and the one in which they pretend that terrorists are Americans, thus entitled to our constitutional rights."
They in no way did this, and you really should be aware of their ruling instead of repeating whatever you can pick up. IANAL, but you should understand the limits of what your government can do.

"Child predators literally take a child's life from them when they rape them."
They in no way do. Some are destroyed for a lifetime, some are shown enough love and are lucky enough to get by.
Foster parenting is amazingly difficult sometimes, but this is in no way equal. Lives can be rebuilt.

"This idea that some predators can be rehabilitated or just misunderstood, victims themselves, and that is why they are what they are, is useless.."
You should read the opinion - this is in no way said or even hinted at this. Though yes, many predators were victims, and did not get enough love+luck to avoid turning into monsters themselves.

"They should never see the light of day again."
No problem with that.

"the theme that keeps coming up is a revolution in this country. And, I don't mean a peaceful one."
There will be nothing until the gas riots. Sure, another rise of militias if Obama wins (that will be fun).

That being said, 2 questions.
1) Is this really any worse than Coker on any of your three points? I haven't found a rational statement on yes. Aside from tightening the death penalties
2) If 20(or 12, or 17) states established similar laws in a tight enough period that they weren't struck down, would a challenge be enough to make it back up to the Court, or does the first part reject that? I think the minority addressed this, not sure what would happen.

Posted by: Dave at June 26, 2008 3:06 AM

My thanks to the liberals for sharing their views. This is what makes blogging sites so interesting.

Jack-You are an idiot. Your BDS is in full force.

Daryl-Yes the C and U does mean that the Supreme Court would get involved, but what/how they choose to make their rulings says alot about what they view as their role. I think in this case (as in others) they have moved outside of their role. They have made the Legislative branch subordinate to the courts. They keep establishing the precedent that ANYTHING done by ANY other branch can be overridden by the courts at any time. Remember court ordered bussing? Pretty soon they will review all decisions made by all other branches (local, state, and federal) to see if they agree with them. If my local town passes an ordinance that trash pickup will be on Fridays, will the courts have to review this too? When does it stop?

Dave-Nice point for point response. Some food for thought there. Thanks!

Posted by: Lee at June 26, 2008 7:54 AM

It seems to me that there will come a day when the Supreme Court strikes down the death penalty once and for all. That day may be far off, but the Court is chipping away at the death penalty over the past few years. I have a feeling that DNA technology and greater understanding of the unreliability of eyewitness identifications will cause the Court to rethink this punishment. In the least, the day will come when the death penalty is reserved only for the most brutal murders, where the evidence is rock solid.

Read John Grisham's book, The Innocent Man (a nonfiction book) about what can go wrong in homicide cases and how the death penalty can be meted out to people who are absolutely innocent.

For those of you who support the death penalty, what is wrong with life without parole? No picnic for the convicted murderer, that's for damned sure.

Posted by: steve at June 26, 2008 9:30 AM

The Court left for another day, however, the death penalty as applied to crimes that extend beyond individual victims:

"We do not address, for example, crimes defining and punishing treason, espionage, terrorism, and drug kingpin activity, which are offenses against the State.

Now, personally, I have a good deal of sympathy with the idea that, for a variety of reasons, the death penalty is best employed against these sorts of crimes."

I agree with you here, Crank. I don't know if we agree for the same reasons, but I suspect we do.

As for the Constitution, this decision doesn't bother me nearly as much as Boudemaine. I don't have a large problem with the court finding that non-murder offenses like child rape violate the 8th Amendment.

The reasoning, though, is troubling. I would like to see some kind of unifying principle or test. Also, I'd rather see the court base these types of decisions less on the "nose counting" that seems to occupy too much of this analysis. The emphasis should be on proportionality, with eye toward special problems in particular cases. For example, in this case the court noted that many of these cases hinge on the reliability of a child's testimony.

As for state's rights, I believe the court can and should draw a Constitutional lines that states cannot cross in imposing the death penalty for non-capital offenses. The fact that states may adopt safeguards doesn't necessarily change my opinion, particularly in this case, when a child's testimony has a lot of weight.

Posted by: MVH at June 26, 2008 10:06 AM

The problem with this ruling and peoples understanding of it is it was not about whether the death penalty itself is constitutional. That has been decided. However, the reason some who opposed to the death penalty can still think this is a poor ruling is the way the majority decided the case. If one can agree (as our society currently has) that the death penalty should be reserved for the most heinous offenses against society then we have already established that in and of itself it is not cruel and unusual. Then the question becomes is raping a child equally as heinous as murdering an adult? I (as a parent) would have to say yes. Morally, I am not in favor of the death penalty. However, I understand that our society is not run on my moral belief system alone and I accept that a society can decide that it is in the interest of all of society to permanently remove the worst among us. If I accept that then I have to question the mindset that says that raping a child is not on par with murder. It was clearly wrong back when we applied the death penalty for horse thieves but I don't think we needed to go this far.

For spammers and people that create computer viruses there is no punishment that could be cruel enough.

Posted by: largebill at June 26, 2008 1:29 PM

What I find problematic with the whole "evolving" nature of cruel & unusual is that so far as I have seen there is no historical evidence that anybody at the time the 8th was adopted would have believed that it empowered courts to decide (1) what types of defendants or (2) what specific crimes might be subject to the death penalty. I can accept evolving standards of what methods of punishment (whether or not they inflict death) are cruel and unusual, though even there the Court should really be very circumspect in deciding that a punishment is "unusual" just because only a minority of state legislatures have imposed it. But the whole 'proportionality' analysis is an exercise in multiplying by zero: it just wasn't part of the Amendment as the People would have reasonably understood it when they ratified the Bill of Rights.

Posted by: The Crank at June 26, 2008 1:38 PM

"there is no historical evidence that anybody at the time the 8th was adopted would have believed that it empowered courts to decide (1) what types of defendants or (2) what specific crimes might be subject to the death penalty."

"But the whole 'proportionality' analysis . . . wasn't part of the Amendment as the People would have reasonably understood it when they ratified the Bill of Rights."

I'm sure you are right, the founding fathers probably did not have proportionality in mind or the types of crimes on their mind when they enacted the 8th Amendment. I'm not suprised at all that strict constructionists are unhappy with this decision. I do have problems with the reasoning, but I don't take strict constructionism to that extreme.

Posted by: MVH at June 26, 2008 2:37 PM

I think the court did employ some bad reasoning for making their case here (that's nothing new...in the present or past), but I do agree that extending the death penalty to child rape cases may increase the number of children who are killed by their victimizers.

While, if anyone raped my child, I would have to dig deep into my Christian ethics not to murder them myself (and, given the chance, I probably would...not proud to say it...just being honest), I oppose the death penalty because I'm positive it leads to the killing of innocent people. I'm from Illinois, and after they released 13 men from death row who had been wrongly convicted and issued the moratorium, I decided I could never support the death penalty again.

that many people (including myself) are against the death penalty

Posted by: Dan W. at June 27, 2008 3:09 AM
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