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The Death Penalty, Child Rape, And The Supreme Court

by @ 4:17 pm on June 25, 2008. Filed under Legal, Samuel Alito, Supreme Court

Today, the Supreme Court ruled in a 5-4 decision that a Louisiana law allowing the death penalty for rape of a child even when it doesn’t result in death is unconstitutional:

A divided Supreme Court ruled today that it is unconstitutional to execute someone who rapes a child but does not kill the victim.

In a 5 to 4 decision, the court struck down a Louisiana law that had authorized the death penalty for anyone who rapes a child under the age of 12. Of 3,300 inmates on death row across the country, only two face capital punishment for a crime other than murder. Both were convicted under Louisiana’s law, the broadest in the land. There has not been an execution for rape in the United States since 1964.

Justice Anthony M. Kennedy joined the court’s more liberal members in continuing the court’s trend of narrowing the number of criminals eligible for death. He wrote that the harm caused a child who is raped is “grave,” but “cannot be quantified in the same way as death of the victim.”

Says who ? Well, apparently, 5 of the 9 unelected men and women in black robes say so.

And that, I think, is what’s really wrong with this decision.

Make no mistakes, the doubts that I harbor about capital punishment to begin with would probably cause me to vote against any effort to expand the death penalty to crimes beyond first degree murder, but that’s a question for a legislator, not a judge. Unfortunately, the legislator-as-judge is something that is far too common and it’s something we see on both sides of the political spectrum notwithstanding the right’s continual repetition of the phrase “judicial restraint.

As Orin Kerr points out, Justice Alito does a fairly good job of pointing out the real problem with today’s decision in his dissent:

  A major theme of the Court’s opinion is that permitting the death penalty in child-rape cases is not in the best interests of the victims of these crimes and society at large. In this vein, the Court suggests that it is more painful for child-rape victims to testify when the prosecution is seeking the death penalty. Ante, at 32. The Court also argues that “a State that punishes child rape by death may remove a strong incentive for the rapist not to kill the victim,” ante, at 35, and may discourage the reporting of child rape, ante, at 34–35.
These policy arguments, whatever their merits, are simply not pertinent to the question whether the death penalty is “cruel and unusual” punishment. The Eighth Amendment protects the right of an accused. It does not authorize this Court to strike down federal or state criminal laws on the ground that they are not in the best interests of crime victims or the broader society. The Court’s policy arguments concern matters that legislators should—and presumably do—take into account in deciding whether to enact a capital child-rape statute, but these arguments are irrelevant to the question that is before us in this case. Our cases have cautioned against using “ ‘the aegis of the Cruel and Unusual Punishment Clause’ to cut off the normal democratic processes,” Atkins v. Virginia, 536 U. S. 304, 323 (2002) (Rehnquist, C. J., dissenting), in turn quoting Gregg v. Georgia, 428 U. S. 153, 176 (1976), (joint opinion of Stewart, Powell, and STEVENS, JJ.), but the Court forgets that warning here.

Alito, I think, get’s it 100% right. It isn’t the Supreme Court’s job to second guess a particular state’s determination that raping an 8 year old girl, in this case your 8 year old stepdaughter, is not a sufficiently heinous crime to justify the death penalty. That decision belongs to the people, acting through their legislators.

Far more clearly than most may realize, this decision lays bare what has gone so terribly wrong with Constitutional jurisprudence in this country over the past 50 years or so.

12 Responses to “The Death Penalty, Child Rape, And The Supreme Court”

  1. KipEsquire says:

    Make no mistakes, the doubts that I harbor about capital punishment to begin with would probably cause me to vote against any effort to expand the death penalty to crimes beyond first degree murder, but that’s a question for a legislator, not a judge.

    That decision belongs to the people, acting through their legislators.

    Read Marbury v. Madison lately?

    I find Alito’s argument simplistic (which, admittedly, is not synonymous with “wrong”). If you assume that “deterrent effect or lack thereof” is a legitimate input into the “cruel and unusual” calculus, then the majority’s opinion is perfectly reasonable and perfectly within its Article III authority to interpret the Eighth Amendment.

    You don’t have to assume it (Alito certainly doesn’t), but there is no real basis to insist that one cannot assume it in the way that the majority does.

  2. Kristin says:

    I’m so sick of people today whining about “legislating from the bench”. “Legislating from the bench” is exactly what it took to end slavery, give women the right to vote, and let black and white people drink from the same drinking fountain. Peole need to spend a little more time studying history to learn that majority rule is not always the way to go.

  3. Kristen,

    Do you even realize how wrong you are historically ?

    Slavery wasn’t ended by the Supreme Court, it was ended by a war that cost the lives of 600,000 men. followed by the passage of the 1eth Amendment. In fact, it was the Supreme Court that gave us the Dred Scott decision which essentially stated that slaves had no rights, even in the North where slavery didn’t exist.

    Women did not get the right to vote from the Supreme Court, they got it from the 19th Amendment which was passed by Congress and the state legislatures via a democratic process established in Article IV of the Constitution. The Supreme Court had no role in extending voting rights to women, just like it had no role in extending voting rights to freed slaves (the 15th Amendment) or people under 21 (the 26th Amendment). The Court’s only role came afterward, in issuing decisions enforcing the Amendments already passed by majority rule.

    Jim Crow laws were not struck down by the Supreme Court, they were ended thanks to the Civil Rights Movement and, most of all, the Civil Rights Act of 1964.

    You said:

    Peo[p]le need to spend a little more time studying history to learn that majority rule is not always the way to go.

    I agree, but, in each of the historical examples you cite it was, in the end, majority rule, not the Court, that brought about the needed change.

    Next time, get your facts straight before relying on history to support your argument.

  4. Kip,

    Why is the detterent effect something that the Court should even consider when determining if a particular punishment for a particular crime is barred by the 8th Amendment ?

    Isn’t that what legislatures exist for to begin with ?

    There is a role for the Court here, but I think they overstep their bounds when a Supreme Court opinion starts reading more like a public policy paper than a legal argument.

  5. Gerhard Gehrmann says:

    If we can kill criminals who do not commit lethal crimes, why would they leave living witnesses? IE – if we can execute rapists, why would he (yes they are predominatly men) leave his victim alive to identify him? This ruling by the SCOTUS is not liberal, it is not legislating from the bench, it is applying logic and common scense. What people often call “legislating from the bench” is usually the court simply providing a check on unrestrained populist pandering.

    I’m with Kristin. The majority of Germans thought executing and toasting Jews, Gypsies, Homos, and political radicals was just fine.

    As for the court to be unelected, get over it, that is what the founders wanted, that is how it is in the constitution, that is how it is. It is that was to counter the tyranny of the majority, to bring sober reflection to legislation, to prevent the vagaries of emotion and puplic opinion from determining law and justice.

  6. Gerhard Gehrmann says:

    Sorry should have said in the last line “It is that way to counter……..”

  7. Gerhard,

    The argument set forth in your first argument assumes that a pedophile rapist is motivated by what penalties he or she might face if caught. Considering that even life in prison can be a death sentence for someone like this, I think that’s highly doubtful, and someone who has no qualms about raping an 8 year old probably doesn’t care what happens to them in the end anyway.

    The majority of Germans thought executing and toasting Jews, Gypsies, Homos, and political radicals was just fine.

    And given that we are discussing the American legal system and the United States Constitution, your argument here has zero relevance and, in all honesty, probably isn’t true.

    As for the court to be unelected, get over it, that is what the founders wanted, that is how it is in the constitution, that is how it is. It is that was to counter the tyranny of the majority, to bring sober reflection to legislation, to prevent the vagaries of emotion and puplic opinion from determining law and justice.

    I don’t disagree. However, the Constitution clearly gives certain powers to the people and allows them to act through their legislature. As I said in the post, if the people of Louisiana decide that raping an 8 year old girl is a sufficiently vile crime to justify death, then I don’t see where in the Constitution the Supreme Court is authorized to overturn that decision.

    And before you cite the 8th Amendment, I would remind you that when the 8th Amendment was passed, stealing a horse was considering a capital crime. I seriously doubt that any of the Founders would have thought that executing someone who raped a child was either cruel or unusual.

  8. Kristin says:

    “Plessy v. Ferguson was the infamous case that asserted that “equal but separate accommodations” for blacks on railroad cars did not violate the “equal protection under the laws” clause of the 14th Amendment. By defending the constitutionality of racial segregation, the Court paved the way for the repressive Jim Crow laws of the South.”

    I was wrong about the other two issues…slavery and women’s rights. My point is that the Supreme Court often helps influence societal changes that can be extremely unpopular at the time but that history later judges to have been the right way to go. To accuse the court of “legislating from the bench” just because they make a decision you don’t agree with seems to me to be shortsighted.

  9. Kristen,

    Now you’ve got me even more confused.

    I’m not sure I understand your point about Plessy because that case is a prime example of legislating from the bench while ignoring the plain language, and clear intent, of the Equal Protection clause of the 14th Amendment.

    I was wrong about the other two issues…slavery and women’s rights.

    No, you were wrong about all three issues or at least about there being historical support for your position in any of the examples you cited.

    the Supreme Court often helps influence societal changes that can be extremely unpopular at the time but that history later judges to have been the right way to go.

    Please point me to the portion of the Constitution which authorizes the Supreme Court to “influence societal changes.”

    It doesn’t exist.

    To accuse the court of “legislating from the bench” just because they make a decision you don’t agree with seems to me to be shortsighted.

    You are completely misunderstanding my post.

    I said, in the post above the following:

    the doubts that I harbor about capital punishment to begin with would probably cause me to vote against any effort to expand the death penalty to crimes beyond first degree murder

    In other words, looking at today’s decision strictly in terms of the result, I agree with the majority that the death penalty shouldn’t as a matter of policy be applied in cases other than those involving murder.

    However, the Supreme Court isn’t supposed to look at issues based on policy considerations, they are supposed to interpret the law based on the facts.

    Using that standard, the argument that the Eighth Amendment was intended to prevent a state legislature from permitting execution as a potential punishment in a case where a man raped his 8 year old stepdaughter is, quite honestly, just plain wrong.

    I agree with the result of the Court’s decision, I just don’t think they had the right or the authority to make it and override the will of the people of Louisiana and several other states where laws of this type have been passed over the past 5-10 years in the process.

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  11. KipEsquire says:

    Why is the deterent effect something that the Court should even consider when determining if a particular punishment for a particular crime is barred by the 8th Amendment?

    Because there are certain universal components of criminal law: (1) rehabilitation, (2) protection of society, (3) deterrence, and (4) retribution.

    It’s bizarre to say that one can possibly analyze the concept of “cruel and unusual punishment” without analyzing the components of “punishment” itself. This is where Alito’s analysis implodes IMHO.

    It would be like saying we can divine the meaning of Fifth Amendment “public use” without trying to define “public” or “use.”

    And yes I’m trying to push your buttons, since by your reasoning here I can’t see how you could simultaneously argue that Kelo was wrongly decided — which I’m sure you do.

    Cheers…

  12. Kip,

    I do see your point, and perhaps my endorsement of Alito’s reasoning was more than a little over-stated.

    Obviously, the Supreme Court has some role in determining what “cruel and unusual punishment” means. And, yes, the factors you cited are relevant. For example, I think most rational people would have a hard time arguing that a state law mandating the death penalty for jaywalking should be sustained under the 8th Amendment, or that decapitation is an acceptable form of punishment.

    But there’s a line somewhere and I think the Supreme Court crossed it today.

    I will admit to not having fully read the opinions, yet, but Kennedy’s reliance on standards of decency makes no sense to me when you consider the fact that the Louisiana law at issue, as well as similar laws in other states, are of very recent vintage, not some archaic law that’s been sitting on the books since the 19th Century. Based on Kennedy’s own logic, one could argue that the “standard of decenecy” with respect to capital punishment is evolving in favor of applying it to crimes that don’t include murder, like child rape

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