June 25, 2008
— Gabriel Malor Okay, so I just can't quit you.
Reading through Justice Kennedy's opinion, I get the feeling that trying to describe this ruling to anyone else would be an exercise in "I am not making this up. Srsly." Let's pretend for a minute that we accepted the ridiculous idea that the Eighth Amendment rests on a combination of "evolving standards of decency" and "the Court's own judgment." Kennedy himself fudges the first part.
For example, he writes in page 22:
Aside from pending legislation [five additional states are considering capital punishment for child rapists], it is true that in the last
13 years there has been change towards making child rape a capital offense. This is evidenced by six new death penalty statutes, three enacted in the last two years. But this showing is not as significant as the data in Atkins, where 18 States between 1986 and 2001 had enacted legislation prohibiting the execution of mentally retarded persons.
What's so shameful is that Kennedy doesn't even bother trying to hide or address the inconsistency. Suddenly, he equates child rape to mental retardation. He makes no comment on the differences between the two, like for example, that one is a crime and the other a condition. It seems that any legislative movement limiting the death penalty in specific circumstances can be used to show a "national consensus" against the death penalty in general.
As I was reading through the opinion, I was on the lookout for that most infamous of execution-worthy crimes: treason. Like child rape, treason need not result in death. Under Kennedy's reasoning, the death penalty would therefore be an inappropriate punishment. For reasons passing understanding and with no explanation, Kennedy simply exempts "offenses against the State" from his reasoning.
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. As it relates to crimes against individuals, though, the death penalty should not be expanded to instances where the victims life was not taken.
Why? He doesn't say, but it's in section where he describes "the Court's own judgment" so it's not like citizens and legislatures need to know how and why the Court comes to a decision, right?
And that's one of the most frustrating things about Eighth Amendment jurisprudence. The whole point of having a Constitution and precedential judgments is so that individuals and legislatures can predict with some success whether their actions will run afoul of the laws or Constitution. But when it comes to the Court's holdings on the Eighth Amendment, that goes right out the window. There's just no way to predict in advance "the Court's own judgment."
Well, that's not strictly true. We know how Kennedy, Souter, Stevens, Ginsberg, and Breyer are going to rule on death penalty cases. The conservative justices are a little harder to predict, if only because their holding is more likely to be based on the specific facts of a case. But how death penalty jurisprudence will change from Court to Court is a crapshoot. Maybe the Senate Judiciary committee should spend more time asking nominees about the Eighth Amendment and less time applying litmus tests for abortion.
Posted by: Gabriel Malor at
06:54 AM
| Comments (99)
Post contains 546 words, total size 3 kb.
Posted by: Barack Obama at June 25, 2008 07:01 AM (Q1lie)
When the courts decide any crime equates to mental retardation the courts will be filled with Aaron Stamplers.
Posted by: tcbevo at June 25, 2008 07:15 AM (inTsh)
Posted by: GarandFan at June 25, 2008 07:16 AM (eJ32B)
Kennedy would be more honest if his opinion simply stated "I'm opposed to the death penalty, so I'm overturning this case."
I would respect Kennedy a lot more if he had the honesty to say this. It would save us all the trouble of having to read through 36 pages of some of the most tortured logic I have ever seen put on paper.
Posted by: crankycon at June 25, 2008 07:23 AM (Nxezv)
Preferably this would be done by ballot initiative or state constitutional amendment to disprove the point about community standards.
Posted by: Sockless Joe at June 25, 2008 07:26 AM (trXz9)
Gabriel, have you noticed how nothing ever gets settled in the legal world any more? This seems to me to be a disturbing trend because when there are no absolutes, anything goes. Laws can be written that clearly (to this layman) are not Constitutional. This leads to the subtle notion that any law can be made and pass Constitutional muster, like campaign reform or the Fairness Doctrine. Of course, lawyers writing law is a conflict of interest, and assures lawyers years of business due to the fuzziness of legality. Years of wrangling and appeals simply lines the pockets of lawyers at the publics' expense. Our founding fathers never envisioned this sort of tyranny, where you can be sued for just about anything, whether there are real damages or not. I long for someone to stand up and say there is a limit to government intervention in everyday life. Oops, maybe I just said it.
Posted by: BackwardsBoy at June 25, 2008 07:28 AM (ZGhSv)
Posted by: Education Guy at June 25, 2008 07:37 AM (TBf8o)
Posted by: roy at June 25, 2008 07:40 AM (cB77O)
Posted by: kbiel at June 25, 2008 07:50 AM (4wIAQ)
Kennedy's point about the death penalty not "fitting the crime" is simply
breathtaking upon reading the details of "the crime" [see NRO]
And this?
"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."
What sort of bs is that?
Posted by: jimzinsocal at June 25, 2008 07:56 AM (AwPtC)
Are there dissenting opinions? I would love to read Scalia or Thomas opine on this abortion of a majority opinion.
Posted by: Fred at June 25, 2008 07:56 AM (ivbbD)
Are there dissenting opinions? I would love to read Scalia or Thomas opine on this abortion of a majority opinion.
Yeah, Alito has a great one that just takes every stupid argument Kennedy makes and rips it to shreds.
Posted by: crankycon at June 25, 2008 07:58 AM (Nxezv)
http://www.law.cornell.edu/supct/html/07-343.ZD.html
Posted by: jimzinsocal at June 25, 2008 08:00 AM (AwPtC)
Posted by: RobG at June 25, 2008 08:03 AM (6Oq7N)
It has been my understanding that pedophilia is non-rehabilitative, so unfortunately the argument can be made that it is a condition.
Since I am new here let me explain I think these fuckers should be hung by the jewels until dead where they will be ushered into that special place in hell.
Posted by: mgnmfrc1 at June 25, 2008 08:10 AM (jEcDD)
It has been my understanding that pedophilia is non-rehabilitative, so unfortunately the argument can be made that it is a condition.
No...no no no no no no no nono. Pedophilia may be a condition (and sickening), but it is not a crime. It only becomes a crime once one acts on it - i.e. child rape, molestation, etc. Comparing child rape to mental retardation is apples to oranges.
Posted by: Satanam in Computatrum at June 25, 2008 08:20 AM (YLs4U)
Having had the "pleasure" of presenting this type of crime to 12 people, I think death is way to easy. A line from Pulp Fiction comes to mind, "I am gonna get some pipe hittin' nigg*** and were gonna get medieval on his ass."
Anything you can get life for you should be able to get death for. The scum I put away got 6000+ years.
Posted by: MAJ O at June 25, 2008 08:35 AM (bQ4oU)
If you think the opinion is cringe-worthy, you should read the oral argument transcript. The attorney defending the death penalty statute began her argument by detailing the very graphic injuries sustained by the little girl. Justice Stevens interrupts her, and says "but were these injuries permanent?" The attorney seems confused, and Stevens interjects again, "these injuries were not permanent."
Unbelievable.
Posted by: angler at June 25, 2008 08:52 AM (kSuu1)
I think the DP should be applied gingerly, but the Louisiana law does not, on the face of it, seem unreasonable.
I have concerns about the general reliability of the courts, but that doesn't mean I have to oppose every penalty, any more than road construction or having an older car should prevent you from trying to go to work ever again.
Posted by: Merovign at June 25, 2008 08:53 AM (yi5TD)
Posted by: roy at June 25, 2008 09:24 AM (cB77O)
Posted by: chris at June 25, 2008 09:25 AM (koK5J)
I'd like to see some states come back and pass death penalty eligibility specifically for MULTIPLE or REPEAT child sex offenders. Let's see what our esteemed court does with those...
Already done here in SC as well.
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. As it relates to crimes against individuals, though, the death penalty should not be expanded to instances where the victims life was not taken.
All crimes are crimes against the State. That's why the State, not the victim, brings the charges and tries the case.
Posted by: Ghost of Lee Atwater at June 25, 2008 10:30 AM (JxMoP)
I hate to say this, but his ruling is in the best interest of child rape victims.
It is an undisputed fact that juries are more reluctant to convict when they know their guilty verdict will/could result in the taking of a life.
If states want to cut down on child rapes, they need to jack up sentence lengths.
And believe me, speaking as a father, if my child was raped, I'm not sure if there would be a need for a trial, IYKWIMAITYD. But that's me and my crazy self talking, not the State.
Posted by: Dogstar at June 25, 2008 11:09 AM (FgxdU)
Posted by: rinseandspit at June 25, 2008 11:09 AM (ao5cQ)
Posted by: WalrusRex at June 25, 2008 11:09 AM (DVVXZ)
But isn't 20 years cruel and unusual, too? Oh, boy--an opening!
Posted by: James Fagan, (D-Massachusetts) at June 25, 2008 11:13 AM (jtd1p)
Posted by: Gabriel Malor at June 25, 2008 11:18 AM (WIxQ1)
Any one want to argue that the Constitution says a State doesn't have the right to impose the death penalty for child rape?
That is what this case was supposed to be concerned with.
Policy based on bad logic is bad policy.
Posted by: Rocks at June 25, 2008 11:21 AM (Q1lie)
Posted by: WalrusRex at June 25, 2008 11:30 AM (DVVXZ)
Posted by: Dogstar at June 25, 2008 11:44 AM (FgxdU)
"All crimes are crimes against the State. That's why the State, not the victim, brings the charges and tries the case."
While I agree, the SCOTUS aparently believes the krytocracy is the State, not you and me.
Posted by: Gus Bailey at June 25, 2008 11:55 AM (LZarw)
Posted by: republicangirl at June 25, 2008 12:17 PM (d20qX)
Posted by: republicangirl at June 25, 2008 12:25 PM (d20qX)
Justice has nothing to do with it.
Posted by: someone at June 25, 2008 12:30 PM (2z2WN)
I hope someone will let me know when our society is fully mature and the meaning of words can be depended on.
Posted by: toby928 at June 25, 2008 12:32 PM (PD1tk)
I'll tell you what: any perv molests/rapes one of my children, he'll end up retarded via tire iron, before I do away with the need for a trial. I'll go Marcellus Wallace on someone's ass.
Alito destroys each of Kennedy's arguments in his dissent -- it's a thing of beauty.
Posted by: CrankyProf at June 25, 2008 12:40 PM (mlPw2)
Curses upon the mismatched clocks that push the new site comments down in preference to the minx, rewarding the unadventurous.
And I fart on all of you still posting on the old site, confident that you will never see this post. :-)
Posted by: toby928 at June 25, 2008 12:41 PM (PD1tk)
The death penalty sounds to me like the perfect solution, - retroactive particularly for repeat offenders. Or maybe Kennedy secretly supports the return of vigilante justice?
Otherwise, exactly what does the court suggest we do to "reform" these scumbags?
What possible contribution to society can they make?
...saucy pre-teen fashion designers?
Unbelievable.
Posted by: Fritz at June 25, 2008 01:17 PM (zAvxs)
Posted by: Fa Cube Itches at June 25, 2008 01:35 PM (ojb2I)
Posted by: mikey at June 25, 2008 01:48 PM (+cFcP)
See, you can kill a fetus/baby in the womb and the State approves. And, once it's out of the womb, one could torture it, too, without the potential risk of peers condemning the perp to death. However, should this person conspire and smuggle drugs, or get caught masterminding a plan to blow something up (i.e. terrorizing citizens), a death sentence would be acceptable.
So, is our "maturing society" driving the Courts to recognize "evolving standards of decency," or is it the Courts which are "evolving" the society? I'll take "Court Justices Pulling Law Out of Its Ass and Evolving Us" for $500, Alex.
Posted by: AnonymousDrivel at June 25, 2008 02:21 PM (OR2PG)
Everything that divides us as Americans can be neatly categorized as Capable and Accountable or Incapable and Unaccountable.
Pick any issue and you will see the left always lines up with Incapable and Unaccountable.
Posted by: Johnny mac at June 25, 2008 02:29 PM (zph02)
Posted by: toby928 at June 25, 2008 02:29 PM (PD1tk)
Apparently, you can try to abort it, have it actually be born inadvertently, rape it, and then kill go ahead and kill it as part of the attempted abortion, and the left still wouldn't want you executed.
Very strange value system, those libs.
Posted by: Just Wondering WTF? at June 25, 2008 02:32 PM (EQYOq)
Posted by: spear at June 25, 2008 02:34 PM (rnKOG)
Posted by: spear at June 25, 2008 02:34 PM (rnKOG)
Looks to me like what it says is:
(1) Rape of a child is not punishable by death.
(2) Rape of a child once, twenty, a hundred times, is not punishable by death.
(3) Rape of one child, twenty children, a hundred children, is not punishable by death.
(4) Rape of a child and the unintended death of the child in (1) through (3) above is not punishable by death.
(5) Rape of a child and the intended death of that child-maybe.
Of course, I could be wrong.
Posted by: mikeyslaw at June 25, 2008 02:57 PM (QMGr1)
Posted by: Abnjm at June 25, 2008 03:09 PM (YESwf)
Posted by: Greg at June 25, 2008 04:57 PM (PgC12)
If we impose the death penalty for child rape, then the smart move for the rapist is to eliminate the best witness against him knowing that he will not be risking a more severe sentence.
Likewise, average citizens should be forbidden to carry concealed weapons. After all, a mugger may be more likely to exhibit violence and even kill his victim should said victim be allowed by law to defend himself.
[img: Picard face palm]
Posted by: Herr Blücher at June 25, 2008 05:15 PM (xiL9j)
Posted by: Justice Kennedy at June 25, 2008 05:26 PM (OR2PG)
I agree with Kennedy. Especially that loophole he left for me. I can do what I want, biatch! I don't like no one touching my stuff. So just keep your meat-hooks off. If I catch any of you guys in my stuff, I'll kill you. And I don't like nobody touching me. Any of you homos touch me, and I'll kill you. Kennedy said so. And you don't want to be on my list.
Posted by: The State at June 25, 2008 05:27 PM (OR2PG)
Amen Spear!
What is this country coming too? Now I'll have to go to prison for doing the courts job. What idiot presidents appointed these hacks?
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