Take This Evolving National Consensus And Shove It
Geese and Ganders
By Dan McLaughlin Posted in Death Penalty | Supreme Court | The Courts — Comments (18) / Email this page » / Leave a comment »
SCOTUSBlog notes that the State of Louisiana - in opposing a certiorari petition - is pointing to a trend of adding child rape to the list of capital crimes as a basis for finding that it's not cruel and unusual punishment under the Eighth Amendment to execute a man who raped his 8-year-old stepdaughter:
The state said that the Court, if it agrees to hear the case, should focus not only on how many states treat rape of a child as a capital crime, but also on a trend toward applying the death sentence to more crimes where the victim is not killed. Five states, like Louisiana, now have capital punishment for child rape, all enacted since 1997 with the most recent, in Texas, in 2007.
Moving beyond that specific crime, the state’s brief said, 15 out of the 38 states and the federal government – 41 percent of the jurisdictions, it notes — "authorize some form of non-homicide capital punishment." That includes treason, espionage, aircraft piracy, aggravated kidnapping, and some drug trafficking crimes.
"The trend toward capitalization of non-homicide crimes, child rape in particular, is significant," the state asserted. "Six states have now enacted the death penalty for child rape after this Court [in Coker v. Georgia, 1977] held that the death penalty for rape of an adult woman was unconstitutional."
This argument puts the Court's liberals and swing vote Justice Kennedy to the test to see if they actually mean what they say.
Read On...
If you recall, the Court in cases such as Atkins v Virginia, involving the execution of the mentally retarded, and Roper v. Simmons, involving the execution of defendants who were under 18 at the time of the crime, has pointed to some variant of an "evolving national consensus" drawn from a trend in state statutes dealing with the death penalty as a basis for finding that the meaning of the Eighth Amendment has been changed sufficiently to extend the constitutional rule to force the dissenting states into line. In Roper, that "evolving consensus" consisted of four state legislatures and one state court changing positions between 1989 and 2005. As I have argued previously, because Article V of the Constitution provides a specific mechanism for the meaning of the document to be altered by action of three-fourths of the states voting in a specified way on a specific written amendment proposed either by two-thirds of the states or two-thirds of both Houses of Congress, this line of reasoning is hopelessly irreconcilable with the text of the Constitution.
But for now, we are stuck with the doctrine; the issue is its application. Is it possible for the "national consensus" to "evolve" in a direction that Justices who oppose the death penalty* don't like or agree with? Or is this, like so many liberal Constitutional doctrines, a one-way ticket?
* - As I have explained before, I personally don't support using the death penalty against ordinary individual crimes, even those as heinous as child rape, although I wouldn't really have a problem applying that law if asked to as a prosecutor or a juror. But in any event, it's nonsense to suggest that it's unconstitutional.
« Gov. Bobby Jindal Signs Bill to Chemically Castrate Sex Offenders — Comments (51)
Take This Evolving National Consensus And Shove It 18 Comments (0 topical, 18 editorial, 0 hidden) Post a comment »
I was curious, so I looked it up, here's a page listing all the states that apply capital punishment for certain "non-homicide" crimes, with details on the legislation in the situations regarding rape of a child...
For those also curious: link
A 15 year-old just got SIXTY YEARS for the rape and beating of a 6 year old girl. Now, don't get me wrong - the boy deserves to be punished, perhaps severely, but I think this is over the top. He won't even be eligible for parole until he's in his 60's.
I don't understand the concept of trying children as adults. If that same 15 year-old boy was having sex with his teacher, the teacher would be in trouble because supposedly he's not old enough to know better. But when he's the perp., somehow it's all different.
I hate sex offenders as much as anyone (I have family member victims as well), but common sense is to taking a backseat. The nation is on a witch hunt against sex offenders and it will backfire. Especially with cities passing laws saying they cannot live within 2000ft of a school or park (which does nothing to solve the problem - it just makes people "feel good"). And like gamecock said, there are numerous cases where people are wrongly accused and get their lives ruined where there is no physical or eyewitness evidence because the burden of proof is on the defendant - not the victim - and that too is unconstitutional.
www.scottbomb.com
Click here to donate to the Fred Thompson campaign.
It's about the one major area where I'm not 'tough on crime.'
Either those under 18 are responsible, or they aren't. And on balance, society says they aren't. So go after the parents, I say.
comitting murder is borne prior to same. Bar mitzvas at 12...
Mike Gamecock DeVine @ The Charlotte Observer
http://thehinzsightreport.com
www.theminorityreportblog.com
www.race42008.com
www.fred08.com
We have a separate juvenile justice system mainly so kids don't suffer long-term for doing things that are, essentially, juvenile - shoplifting, dumb*** pranks, getting in fights, etc. When a juvenile does something genuinely evil, that's different entirely, not least of which because we want such people flagged and removed from society as early as possible.
In the particular case scottbomb notes, 60 years does seem excessive, but I would have no problem with a 20-30 year sentence; none whatsoever.
"No compromise with the main purpose, no peace till victory, no pact with unrepentant wrong." - Winston Churchill
If a 15 year old is capable of voluntarily and willfully deciding and carrying into fruition such a vile and adult crime, he deserves to be treated as an adult. He chose to engage in such a crime, an adult crime, and should be punished accordingly.
If that's the case, then we should abolish the idea of trying children as children and try them all as adults if we're going to have equal justice under the law. Granted, the crime was henious and he should be punished accordingly but I believe trying him as an adult because of our emotional response to the crime clouds our judgement.
Consider this opposite but similar double-standard: An attractive 25-year-old teacher has sex with a 15-year-old student & she gets probation. Us guys tend to laugh when they call him a "victim". We joke, "where was that teacher when I was a kid?" But we all know if it were a male teacher and female student, he'd be in the pen facing 10-20.
www.scottbomb.com
Click here to donate to the Fred Thompson campaign.
baby got probation in NC.
Mike Gamecock DeVine @ The Charlotte Observer
http://thehinzsightreport.com
www.theminorityreportblog.com
www.race42008.com
www.fred08.com
and still am shaking my head...you can't be serious?..
" Got to love the Lord for making things like that."
Morally Compromised
" Got to love the Lord for making things like that."
Morally Compromised
I made a few in that semi-threadjack.
www.scottbomb.com
Click here to donate to the Fred Thompson campaign.
The death penalty period is under serious attack in this country. Justice Kennedy apparently enjoys being cojoled by his European friends against the death penalty and for homosexual "rights". Apparently he gets an earful from his summer friends about how close-minded and backwater us dirty Americans are for supporting the death penalty and finding homosexuality offensive and attempts to make good with them when the Court is back in session.
spent the summer in Europe, mainly teaching. It's a financial thing, not a "cojoling" thing.
______________________________________
Donate to the Rs in Close Senate Races through Slatecard
But there is no doubt that Justice Kennedy takes the European lectures on how backwards we are to heart re: homosexual "rights" and the death penalty. That is well documented (see his opinion in Lawrence...and I fear his upcoming opinion on the 3-cocktail lethal injection).
For the time being, it's in our lexicon, but I say that phrase will never again be used in a Supreme Court decision.
And the next time a case come up which would be a direct challenge to Roper, Roper will get overturned. Not tempered, not mitigated, but overturned, as it should be.
I say this for 2 reasons: the next POTUS will be a Republican, and he will replace at least 2 SCOTUS retire-by-death positons (because they WON'T go willingly) with originalist/constructionist justices. And that'll make 6.
And, after all, stare decisis IS fo' suckas
And by the way, there is a special place in hell reserved for issue-whores like AK.
Stare decisis is fo' suckas -- Feddie
I'm a closet anarchist and I like stare decisis.
Mike Gamecock DeVine @ The Charlotte Observer
http://thehinzsightreport.com
www.theminorityreportblog.com
www.race42008.com
www.fred08.com
One,it violates the eye for an eye principle; and two, given my experience in all kinds of rape cases as a trial lawyer and the relatively high percentage of false allegations.
As to whether it is "cruel and unusual", it would not be given the original intent. However, this is one provision that does leave a lot of discretion, esp under strict construction, to the justices own beliefs given the vague terms.
Mike Gamecock DeVine @ The Charlotte Observer
http://thehinzsightreport.com
www.theminorityreportblog.com
www.race42008.com
www.fred08.com