Supreme Court Watch

Big morning today at the Supreme Court, which ruled that the death penalty is unconstitutional in cases of child rape "where the crime did not result, and was not intended to result, in death of the victim." Justice Anthony Kennedy wrote the 5-4 majority, which was joined by Justices John Paul Stevens, Ruth Bader Ginsburg, Stephen Breyer, and David Souter. Justice Samuel Alito dissented, joined by Justices Antonin Scalia and Clarence Thomas and by Chief Justice John Roberts. You can find the decision here.

For those of us eagerly awaiting the Court's decision in DC v. Heller, which looks at the constitutionality of Washington, DC's sweeping handgun ban, as well as whether the Second Amendment protects an individual or collective right to keep and bear arms, that ruling will be issued tomorrow. And it is looking very likely that Justice Scalia will be the author of a plurality, if not a majority decision, which suggests a big win for individual rights.

Comments

x,y | June 25, 2008, 11:35am | #

What leads you to think Scalia will author a plurality or majority opinion?

John-David | June 25, 2008, 11:35am | #

It's been said before, but the Supremes made the right call in the child rape case. However, as far as I can tell they all ignored the pragmatic aspect: If the rapist is going to get the needle anyway, why not kill the victim and take your chances?

Nigel Watt | June 25, 2008, 11:36am | #

If capital crimes are to exist, why should rape not be one of them?

/does not agree with the death penalty

robc | June 25, 2008, 11:38am | #

x,y,

There is a general rule that each justice is assigned at least one majority decision to write from each term. From the March hearings, Scalia hasnt yet delivered a majority opinion. Unless Roberts gave him the spring off, Heller was his.

This was info a learned from Volokh earlier this week.

Mr. Nice Guy | June 25, 2008, 11:39am | #

I think it was the wrong call. It strikes me that rape was taken off the list of capital crimes because of the bad history of prosecuting black guys for raping white girls. But if there is an actual child rape I say that qualifies for the death penalty any day of the week.

ChicagoTom | June 25, 2008, 11:39am | #

It's been said before, but the Supremes made the right call in the child rape case. However, as far as I can tell they all ignored the pragmatic aspect:If the rapist is going to get the needle anyway, why not kill the victim and take your chances?

Then you apparently didn't read the majority decision throughout:

[B]y in effect making the punishment for child rape and murder equivalent, a State that punishes child rape by death may remove a strong incentive for the rapist not to kill the victim. Assuming the offender behaves in a rational way, as one must to justify the penalty on grounds of deterrence, the penalty in some respects gives less protection, not more, to the victim, who is often the sole witness to the crime. It might be argued that, even if the death penalty results in a marginal increase in the incentive to kill, this is counterbalanced by a marginally increased deterrent to commit the crime at all. Whatever balance the legislature strikes, however, uncertainty on the point makes the argument for the penalty less compelling than for homicide crimes.

ChicagoTom | June 25, 2008, 11:44am | #

Alito's dissent was interesting...

With respect to the question of moral depravity, is it really true that every person who is convicted of capital murder and sentenced to death is more morally depraved than every child rapist? Consider the following two cases. In the first, a defendant robs a convenience store and watches as his accomplice shoots the store owner. The defendant acts recklessly, but was not the triggerman and did not intend the killing. In the second case, a previously convicted child rapist kidnaps, repeatedly rapes, and tortures multiple child victims. Is it clear that the first defendant is more morally depraved than the second?

... Indeed, I have little doubt that, in the eyes of ordinary Americans, the very worst child rapists -- predators who seek out and inflict serious physical and emotional injury on defenseless young children -- are the epitome of moral depravity.

To me though his conclusion is wrong...instead of concluding that the child rapist is more depraved than the non-trigger man (which I agree with) therefore the rapist also deserves the death penalty -- I would say that the guy who wasn't the trigger man doesn't deserve the death penalty to begin with.

Apparently though that line of thought is considered silly by the SCOTUS.

Episiarch | June 25, 2008, 11:45am | #

And it is looking very likely that Justice Scalia will be the author of a plurality, if not a majority decision, which suggests a big win for individual rights

I fucking hope you're right. This court is unpredictable and so is Scalia.

John-David | June 25, 2008, 11:46am | #

ChicagoTom,

You got me. I'd read a few summaries, and read through about half the majority decision before posting that. Thanks for posting that.

h-dawg | June 25, 2008, 11:46am | #

"It strikes me that rape was taken off the list of capital crimes because of the bad history of prosecuting black guys for raping white girls."

Why not if, going back a little further in history, that was a reason it was made a capital crime? You don't think they hanged Rhett for forcibly deflowering Scarlet, do you?

Mo | June 25, 2008, 11:47am | #

If capital crimes are to exist, why should rape not be one of them?

So that the rape victim lives another day.

madmikefisk | June 25, 2008, 11:47am | #

I understand the "removing the incentive to kill the victim" bit, but how many child rapists are really thinking about that seriously? If that's the underlying logic, it's actually, surprisingly, an inadvertent strengthening of capital punishment provisions, as it basically turns the deterrent effect of the death penalty into a "known fact" (as it is built on the supposition of "well, now that they're going to kill me anyway...").

Ironic | June 25, 2008, 11:47am | #

If The USSC rules that the Constitution is Constituional in DC v. Heller, I might be willing to take a job in Chicago I have been looking at. Otherwise I will pass.

Mo | June 25, 2008, 11:50am | #

I fucking hope you're right. This court is unpredictable and so is Scalia.

Was that sarcasm? Scalia is the most predictable justice outside of Ginsberg.

jbd | June 25, 2008, 11:51am | #

I suspect that the number of wrongful convictions is high in this category of crime against children. The accusation is commonly used in divorce and child-custody proceedings (that's one sure way to get this guy out of your life forever, and avoid those pesky visitation rights). Young kids can be manipulated to say all kinds of things. I'm sure there are some prosecutors who lack the common sense or decency to scrutinize such claims before bringing criminal charges.

NP | June 25, 2008, 11:51am | #

Even if you believe in the death penalty, you've gotta pretty insane to argue for the death of someone whose crime did not result in one. Yes, even when children are involved.

Apaulogist | June 25, 2008, 11:53am | #

The SCOTUS establishing the "individual right" to bugger children without fear of the death penalty is hardly cause for celebration. It is simply one more example of their complete contempt of the Tenth Amendment and the very concept of enumerated powers.

J sub D | June 25, 2008, 11:55am | #

Child rapists are lower than low. They are unworthy of my creative invective. Still, an incompetent and corrupt justice system should not be given the authority to execute people.

ChicagoTom | June 25, 2008, 11:55am | #

Was that sarcasm? Scalia is the most predictable justice outside of Ginsberg.

I was thinking the same thing...

at this point the SCOTUS is quite predictable on any question that is seen as political or that has clear left/right battle lines drawn -- you can almost be guaranteed a 5-4 result. It seems like the only person who is really a swing vote is Kennedy.

Scalie is very predicatble....just figure out what result Bush and hard right would want, and he will find a way to justify that result.

Not Thomas -- he might surprise you. He seems to have become much more of an orginalist.

ChicagoTom | June 25, 2008, 11:56am | #

I suspect that the number of wrongful convictions is high in this category of crime against children. The accusation is commonly used in divorce and child-custody proceedings (that's one sure way to get this guy out of your life forever, and avoid those pesky visitation rights). Young kids can be manipulated to say all kinds of things. I'm sure there are some prosecutors who lack the common sense or decency to scrutinize such claims before bringing criminal charges.

A point also addressed by the majority:

There are, moreover, serious systemic concerns in prosecuting the crime of child rape that are relevant to the constitutionality of making it a capital offense. The problem of unreliable, induced, and even imagined child testimony means there is a "special risk of wrongful execution" in some child rape cases. This undermines, at least to some degree, the meaningful contribution of the death penalty to legitimate goals of punishment. Studies conclude that children are highly susceptible to suggestive questioning techniques like repetition, guided imagery, and selective reinforcement. [Citing multiple studies.] Similar criticisms pertain to other cases involving child witnesses; but child rape cases present heightened concerns because the central narrative and account of the crime often comes from the child herself. She and the accused are, in most instances, the only ones present when the crime was committed.

????????? | June 25, 2008, 11:58am | #

How about the death penalty for members of congress who violate their oath of office?

J sub D | June 25, 2008, 12:00pm | #

Just to be clear, if I trusted the justice system I'd be a vocal supporter of giving child rapists the needle. You can hold the sedative in the death coctail for those folks.

x,y | June 25, 2008, 12:00pm | #

thx robc, I read Volokh often but haven't had time recently.

Scott | June 25, 2008, 12:02pm | #

[B]y in effect making the punishment for child rape and murder equivalent, a State that punishes child rape by death may remove a strong incentive for the rapist not to kill the victim.

A fair argument for the legislature. Irrelevant for constitutionality. Bad ideas can be constitutional.

Fluffy | June 25, 2008, 12:12pm | #

ChicagoTom -

While the concern over the vagaries of deterrence shown in the first excerpt blockquote from the majority opinion makes sense to me, I don't see how that is an issue for the judiciary.

I'm anti-death penalty, but it seems to me that the paragraph you cite is discussing whether or not the death penalty is a good idea, or will work in the right way to deter the crime the law seeks to deter - and that isn't any of the judiciary's business. That's what the legislature is for.

The court should only rule on whether the law is Constitutional, and not whether it's likely to be effective.

Nigel Watt | June 25, 2008, 12:13pm | #

A fair argument for the legislature. Irrelevant for constitutionality. Bad ideas can be constitutional.

That was the point of my original post.

Fluffy | June 25, 2008, 12:21pm | #

This undermines, at least to some degree, the meaningful contribution of the death penalty to legitimate goals of punishment.

It seems to me that the Court is saying here that a law can only be Constitutional if the Court thinks it will actually attain its goal.

That's absolutely shocking.

thoreau | June 25, 2008, 12:22pm | #

Yes, whenever I hear a rumor that Scalia will write the opinion I know that my rights are secure.

Sure.

Elemenope | June 25, 2008, 12:27pm | #

I fucking hope you're right. This court is unpredictable and so is Scalia.

Oh, Episiarch: Get over it.

Seriously. ;)

Neu Mejican | June 25, 2008, 12:32pm | #

Cruel and unusual seems to automatically include the death penalty...no matter the crime...as death results in no way to appeal, rectify mistakes by the judiciary, etc...*

So any crime taken off the capital crime list is a good thing.

*If the criminal is and sentenced to life in prison, of course, no suicide watch is warranted...

Guy Montag | June 25, 2008, 12:37pm | #

Completly against the death penalty, i.e., real ones not imagined ones, so I guess I can afree with the outcome here. Not sure how the reasoning went.

In the Heller case, yes I am renewing my TN CCP, but I doubt I will get to use it in DC before it is time to renew in 2012.

Baby steps.

Mr. Nice Guy | June 25, 2008, 12:38pm | #

"Even if you believe in the death penalty, you've gotta pretty insane to argue for the death of someone whose crime did not result in one. Yes, even when children are involved."

Why is that? We reserve the death penalty for especially horrific crimes and I think raping a child is that horrific. Also see Alito's dissent discussing the competing culpability of the non-trigger man vs. the child rapist.

I agree with fluffy. The excerpts from the majority seem to demonstrate judicial activism at its worst. The discussion of whether the rationale behind the enactment of this punishment is ultimately compelling should be beside the point, it's at least rational and the Court shouldn't strike down a legislatures action because the court finds the rationale behind it in the end less than fully compelling...

ChrisO | June 25, 2008, 12:42pm | #

Regardless of what the Supreme Court does, I think the death penalty is gradually on its way out in the country. IIRC, even Texas and Virginia aren't executing as many convicts as they used to.

J | June 25, 2008, 12:45pm | #

While I like the result, I am not entirely sure I understand how it's possible to to reject this on constitutional grounds. Perhaps cruel and unusual to punish with something irreversible and worse than the crime? I am not sure I get it though.

J. P. Carlo | June 25, 2008, 12:45pm | #

You guys are forgetting one thing. The armed robbers, the regular rapists, the cop killers (the real ones, not Mr. Frederick), the guy who stabs an old lady to death with an ice pick because she doesn't walk fast enough with her walker - these guys all despise child molesters and rapists. They hate them. They're lower than low. In the prison hierarchy, child sex offenders are the lowest rung.

Let's just say that a child rapist serving a life sentence without parole... generally won't retain anal retention for very long.

Why give them the needle, and the easy way out?

Instead, a guard tips off the gen pop that so-and-so raped a 6-year-old, then put him in a cell with the biggest, meanest, inmate there is. Then the guard takes a cigarette break.

Not that I exactly advocate such activities, but jus' sayin.

Guy Montag | June 25, 2008, 12:51pm | #

Caerainly not against capping a child rapist in the act, of course.

Is the term "perfect defense" that should be available for the capper?

ChicagoTom | June 25, 2008, 12:56pm | #

While the concern over the vagaries of deterrence shown in the first excerpt blockquote from the majority opinion makes sense to me, I don't see how that is an issue for the judiciary.

To be clear -- I didn't cite it because I agreed with it, but merely to document that the court did in fact adrress the issue re: someones comment above.

Personally, I lean towards agreeing that those considerations shouldn't enter into whether a law is constitutional or not. Although I probably don't feel as strongly about it as others. Since Congress has decided to not care too much about the effectiveness/consequences of the laws they pass so long as they are perceived politically as doing something it's a little comforting to know that sometimes some the courts will question the effectiveness/consequences -- even if they aren't really tasked with it.

I believe that the decision is a correct one -- but the SCOTUS knew that there would be PR fallout because of this so they added these types of considerations/justifications to try and mitigate the cries of "THE SCOTUS IS PROTECTED CHILD MOLESTERS" that will inevitably occur because of this ruling.

It seems to me the heart of the ruling is that death is not an appropriate punishment for raping someone -- even if that someone is a child -- and applying a punishment of death to someone whose victim is alive would be cruel.

ChicagoTom | June 25, 2008, 12:59pm | #

This seems to be the heart of the decision:

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. 433 U. S., at 598. Rape has a permanent psychological, emotional, and sometimes physical impact on the child. See C. Bagley & K. King, Child Sexual Abuse: The Search for Healing 2–24, 111–112 (1990); Finkelhor & Browne, Assessing the Long-Term Impact of Child Sexual Abuse: A Review and Conceptualization in Handbook on Sexual Abuse of Children 55–60 (L. Walker ed. 1988). 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." 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.

Rimfax | June 25, 2008, 1:00pm | #

Why don't they just issue red and blue robes already? (Sure, give Kennedy a reversible one.)

Mr. Nice Guy | June 25, 2008, 1:08pm | #

That is probably the heart of the decision, but I think it's wrong. As Alito explains the Court in Crocker strongly implied states can't punish anything other than murder with the death penalty and then they rule that the low number of states with punishments of death for a crime other than the death penalty is proof that this violates the standards of decency in this nation!

ktc2 | June 25, 2008, 1:09pm | #

The death penalty should be reserved only for politicians, judges, cops and other public servants.

I just don't believe our legal system should be trusted with the power to exterminate people. It's completely corrupt, incompetent and divorced from justice.

zoltan | June 25, 2008, 1:16pm | #

So what is the point where our justice system is uncorrupt enough to start using the death penalty? Someone here have a barometer of corruptibility or something?

Elemenope | June 25, 2008, 1:55pm | #

Why don't they just issue red and blue robes already? (Sure, give Kennedy a reversible one.)

What, you don't think he'd look hot in purple?

Elemenope | June 25, 2008, 1:56pm | #

So what is the point where our justice system is uncorrupt enough to start using the death penalty? Someone here have a barometer of corruptibility or something?

I'd say approximately around the time that people who are not criminals stop cursing cops as pigs. That would be a really big clue that things are lightening up, but of course it would be only a start.

Erÿk Boston, J.D. | June 25, 2008, 2:15pm | #

One major problem with the death penalty is that is most defensible in exactly the cases where emotion and prejudice are likely to interfere with the legitimacy of the process. Over the last couple of decades we've seen countless cases of people spending years in jail for horrific ritual abuse crimes that probably never occurred outside the mind of social workers and prosecutors plus the "recovered memory" convictions.

Fluffy, are you really arguing that a law which is constitutional because it purportedly serves a purpose should not be evaluated on if it does, in fact, serve that purpose? Under that logic, virtually any law would be constitutional so long as the legislators assert that it serves some legitimate purpose.

And, yes, I do realize Congress has been using that exact line of logic with the commerce clause for decades. See the results.

Nick_M | June 25, 2008, 2:16pm | #

I'm not a legal expert, but when I think of "cruel and unusual punishment", I interpret it as meaning a punishment that no imaginable crime would justify. Like, say, televised castration.

If "cruel and unusual" is interpreted as "inappropriate for said crime", then doesn't it follow that every state and local criminal law in America can be overturned if SCOTUS finds it "inappropriate"?

Elemenope | June 25, 2008, 2:31pm | #

If "cruel and unusual" is interpreted as "inappropriate for said crime", then doesn't it follow that every state and local criminal law in America can be overturned if SCOTUS finds it "inappropriate"?

If we are to keep our heads in the rarefied clouds of "theory" then I suppose so.

Down here in reality, however, one might imagine the emergency brakes being thrown long before that eventuality. At a certain point, a SCOTUS that far off the rails will just get ignored by the executive and/or impeached by Congress.

"Activist" judges are really only ever scary to those folks who have a vested interest in judges not touching their particular pet, well-paid-for legislation. A court that gets too far outside the lines gets slapped, simple as that.

Telly | June 25, 2008, 2:32pm | #

I have no problem with killing people who rape children. Not to be all Billy-bad-ass, but if someone did that to my kid, I'd bestow my own death penalty. No problem at all.

GG | June 25, 2008, 2:58pm | #

Why don't they just issue red and blue robes already?

They're not issued! They buy and shop for their own. Can you believe it?

MR. SAGAL: The question for you, Justice Breyer is, do you ever have to maintain your robes with an adhesive and/or other kind of lint-removal device.

MR. ROCCA: Or does Justice Alito pick it off for you?

JUSTICE BREYER: You know, actually I – I bought my robe I think about 25 years ago – (chuckles) – in Boston.

MR.ROCCA: Where did you buy it?

MS. POUNDSTONE: You bought your own robe?

MR.ROCCA: Where do you go for it? Filene’s Basement, or --

JUSTICE BREYER: I went to some shop down – I remember downtown. It was downtown.

MS. POUNDSTONE: Get out!

MR. ROCCA : Robes R Us.

(Sure, give Kennedy a reversible one.)

Heh.

if someone did that to my kid, I'd bestow my own death penalty.

I'm opposed to state-sanctioned murder but, in heinous cases such as these, I can understand how vigilante justice would be an appealing alternative.

bigbigslacker | June 25, 2008, 2:59pm | #

Most of the commentary seems to be on the sensibility of the law. Shouldn't the focus of discussion be the constitutionality of the law? (to which I add nothing)

Steve | June 25, 2008, 3:01pm | #

An easy way to avoid the controversy for child rapists and state imposition of the death penalty--make child rapists ineligible for protective isolation while in prison.

This would almost certainly turn out to be a penalty at least as severe as state-imposed death, and it would likely happen a lot faster too.

Nick M | June 25, 2008, 3:03pm | #

At a certain point, a SCOTUS that far off the rails will just get ignored by the executive and/or impeached by Congress.

But wouldn't it be nice if they were retrained beforehand by having their heads stuck "in the rarefied clouds" of the theory that they can only overturn laws that the Constitution forbids (as opposed to laws that they disapprove of)?

It's hard for me to imagine that the framers meant "cruel and unusual" to mean "a punishment that is sometimes okay, but, isn't okay in this case, according to the sense of proportion of the federal Supreme Court".

In other words, if the death penalty isn't inherent unconstitutional, then the States should be able to apply it in accordance with their our senses of proportion.

Fluffy | June 25, 2008, 3:16pm | #

Fluffy, are you really arguing that a law which is constitutional because it purportedly serves a purpose should not be evaluated on if it does, in fact, serve that purpose? Under that logic, virtually any law would be constitutional so long as the legislators assert that it serves some legitimate purpose.

The question of whether a punishment is cruel and unusual has nothing to do with its purpose.

I have to second what Nick M says here. The Constitution forbids cruel and unusual punishments, and not punishments the Court feels are disproportionate to the crime, or not likely to influence criminal behavior with the appropriate deterrence.

If the death penalty is not cruel and unusual for one crime, it can't be cruel and unusual for another crime. It can be unfair, or disproportionate, or excessive, but it can't be cruel. Cruelty and unusualness are aspects belonging to the punishment itself, and not the crime it is imposed in response to. Sticking someone into an iron maiden is cruel and unusual, whether you're doing it to a murderer or to someone who jaywalked.

Arguing otherwise smacks of Bush-logic, where torture is good or bad depending on who you apply it to. It also usurps the legislature's prerogative of writing the laws, including the punishments included in those laws.

bigbigslacker | June 25, 2008, 3:46pm | #

If it is cruel and unusual to sentence a rapist to death, then it is certainly also cruel and unusual to sentence a person to ten years in prison (possibly a death sentence depending on the age of the offender or what may happen to him in prison) for possession of 20 grams of drugs such as cocaine. If the court is going to go the activist route in restricting state-mandated punishments based on their opinion of what makes sense, they should do so with some consistency.

Elemenope | June 25, 2008, 3:47pm | #

All punishments are cruel. That's kind of the point...

robc | June 25, 2008, 4:00pm | #

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. -- Amendment 8

In the context of that sentence, I think "cruel and unusual" is a superset of excessive.

Executing a murderer (or rapist) may not be cruel.
Executing a jaywalker is cruel.

Not the act itself, but the context of the act. Or, its unusual. Which covers excessive, I would think.

Invisible Finger | June 25, 2008, 4:07pm | #

Even if you believe in the death penalty, you've gotta pretty insane to argue for the death of someone whose crime did not result in one. Yes, even when children are involved.

I dunno about insane. Humans are generally a bloodthirsty lot. We just don't like getting our hands dirty. By having a third party act out our bloodlust, it makes people even MORE bloodthirsty rather than less.

I have no problem with the death penalty in theory, I have a problem with the state doling out the punishment and having a monopoly on the request. At the very least the lead prosecutor should be the one wielding the blade. But the lawyers and judges never have to get their hands dirty, it's always some grunt or Kervorkian-wannabe that has to do the actual deed. If you want the death penalty but are too chicken-shit to carry it out yourself, then you should be denied your request.

Russ 2000 | June 25, 2008, 4:17pm | #

We reserve the death penalty for especially horrific crimes and I think raping a child is that horrific.

The problem is our constant re-defining of "child".

Invisible Finger | June 25, 2008, 4:26pm | #

The more significant problem with the death penalty is our criminal justice system's horrific error rate.

Close enough for government work?

Michael Ejercito | June 25, 2008, 5:05pm | #

The more significant problem with the death penalty is our criminal justice system's horrific error rate.

Would you support the death penalty for crimes with absolutely no possibility of error, such as homicide caused by drunk driving?

bigbigslacker | June 25, 2008, 6:13pm | #

Michael, I take it there are some unstated assumptions in your example? Witnesses that the defendant was driving on the wrong side of the road? No cell phone or other distractions in play. Clear intoxication - BAC of .15 as opposed to .08, and no reliance on opinions of the officer based on odor or coordination following a crash.

Even so, how is driving when drunk (when you are in no condition to judge yourself unable to drive, eh?) worse than intentionally driving while otherwise distracted? If you intentionally used a cell phone and killed someone, you should get the same penalty as a person who is marginally "drunk". Accidental death may be a bad example.

Drunks unite!!!

Bobster | June 25, 2008, 6:41pm | #

If a 18 year old has sex with a 17 year old he should die as he raped a child? That is where we would be soon if this had gone the other way.

Also, why is it always "she" who is the victim?

Bobster | June 25, 2008, 6:44pm | #

I guess I should have typed:
"If a 18 year old has sex with a 17 year old SHE should die as SHE raped a child."

Michael Ejercito | June 25, 2008, 8:57pm | #

Michael, I take it there are some unstated assumptions in your example? Witnesses that the defendant was driving on the wrong side of the road? No cell phone or other distractions in play. Clear intoxication - BAC of .15 as opposed to .08, and no reliance on opinions of the officer based on odor or coordination following a crash.

No person convicted of this type of crime has ever been shown to be innocent.

John Thacker | June 25, 2008, 9:33pm | #

The comments about Justice Scalia seem to have ignored, e.g., today's Giles v. California case (and in addition the case of Kyllo v. United States, where Justice Scalia wrote for a 5-4 Court that heat sensing lamps could not be used to detect heat coming off a house to grow pot unless the police obtained a warrant). The question: A man was accused of killing his wife. His wife had previously made comments in a domestic abuse call. Can her testimony in those calls be admitted as evidence or does it deny the accused the right to face his accuser? There are traditional common law exceptions for when someone knows that they're dying, or when the accused apparently tried to prevent the witness from testifying. However, this occurred prior to the accused murder.

California ruled that the testimony could be accepted, since in the opinion of the judge there was sufficient evidence that he was guilty of the murder. (I don't quite follow this part.) Scalia delivered the opinion of the Court that this violated the right to face one's accuser. Justices Robert, Alito, and Thomas joined him in full, Justices Ginsburg and Souter joined in part, Justices Stevens, Kennedy, and Breyer dissented, saying that the right to face one's accuser only holds in so far as it upholds the values underpinning it, in this case the right to a fair trial.

In the child rape case, Justice Kennedy apparently seemed to claim that, in addition to being a murderer, being a drug kingpin was automatically worse than any child rapist. Justice Scalia focused on this in part of his dissent.

If a 18 year old has sex with a 17 year old he should die as he raped a child? That is where we would be soon if this had gone the other way.

That seems like an extremely implausible assertion. For one thing, the age of consent is 17 in Louisiana, which is actually higher than the 16 that most surrounding states have. For another, the vast majority of states have exceptions to statutory rape when both parties are within 2 to 4 years of each other (depends on the state). In Louisiana's case, someone as young as 13 may consent so long the other person is within 3 years. There are some different rules if the adult is "in a position of power" over the person, however; it is 18 or 21 in the case of a coach or teacher or minister. Finally, I am aware of no state that treats statutory rape as in the same category as first degree rape; it seems difficult to imagine that it would suddenly get the death penalty.

NP | June 26, 2008, 12:30am | #

(Not sure whether either of you'll get to read this, but here goes.)

Mr. Nice Guy,

I certainly agree that child rape is a crime that's only a notch below premeditated murder on the Horrific-Meter, but there's a difference between torture and murder. The death penalty, if we're gonna implement it at all, should be reserved only for the most heinous of crimes which which almost all of us agree is premeditated murder.

Invisible Finger,

I guess "insane" was a poor word choice. I only meant to make the above point.

Paul | June 26, 2008, 3:28am | #

I haven't read any comments...

My prediction:

The court will issue in favor of removing the DC gun ban, but will leave wiggle room for the right of municipalities to continue to regulate guns. That wiggle room will leave a wide berth for interpretation by lawmakers. The result of which will be the DC gun ban will stand after a light rewording of the statute-- leading to the very same situation that stands now.

Bobster | June 26, 2008, 5:34am | #

John Thacker,
I wrote:
If a 18 year old has sex with a 17 year old he should die as he raped a child? That is where we would be soon if this had gone the other way.

You responded:
That seems like an extremely implausible assertion.

Have you not witnessed just such "extreme implausibility" already?
I bet if I went back 20 years into the past and told someone that it would soon be illegal to smoke in bars or eat fatty foods I would be told "That seems like an extremely implausible assertion."

Fluffy | June 26, 2008, 9:05am | #

This thread is probably dead now, but I felt obliged to return to admit that I am changing my mind on this issue. You guys have convinced me.

If the Constitution specifically protects the individual accused against excessive fines, it seems absurd to believe that the "cruel and unusual" clause is not designed to protect against excessive non-fine punishments.