Supreme Court Strikes Down Death Penalty for Child Rape

By Jeralyn, Section Supreme Court
Posted on Wed Jun 25, 2008 at 09:10:58 AM EST
Tags: death penalty (all tags)

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Via Scotus Blog: The Supreme Court decided Kennedy v. Louisiana today, holding that "the death penalty for child rape is unconstitutional if the defendants' acts were not intended to cause death." The decision was 5-4.

The Court has released the opinion in Kennedy v. Louisiana (07-343), on whether the Eighth Amendment prohibits states from imposing the death penalty for child rape, and, if not, whether Louisiana’s statute fails to narrow the class of offenders eligible for the death penalty. The ruling below, which upheld the state law, is reversed and remanded.

Justice Kennedy wrote the opinion. Justice Alito dissented, joined by the Chief Justice and Justices Scalia and Thomas. We will provide a link to the decision as soon as it is available.

The opinion is available here. The Court categorically says the death penalty is forbidden for crimes that do not result in death. [More..]

Update: From the syllabus:

The Eighth Amendment bars Louisiana from imposing the death penalty for the rape of a child where the crime did not result, and was not intended to result, in the victim’s death.
The Amendment’s Cruel and Unusual Punishment Clause “draw[s] its meaning from the evolving standards of decency that mark the progress of a maturing society.” Trop v. Dulles, 356 U. S. 86, 101. The standard for extreme cruelty “itself remains the same, but its applicability must change as the basic mores of society change.” Furman v. Georgia, 408 U. S. 238, 382.
Under the precept of justice that punishment is to be graduated and proportioned to the crime, informed by evolving standards, capital punishment must “be limited to those offenders who commit ‘a narrow category of the most serious crimes’ and whose extreme culpability makes them ‘the most deserving of execution.’ ” Roper, supra, at 568.
...Informed by its own precedents and its understanding of the Constitution and the rights it secures, the Court concludes, in its independent judgment, that the death penalty is not a proportional punishment for the crime of child rape.
(a) The Court’s own judgment should be brought to bear on the death penalty’s acceptability under the Eighth Amendment. See, e.g., Coker, supra, at 597. Rape’s permanent and devastating impact on a child suggests moral grounds for questioning a rule barring capital punishment simply because the crime did not result in the victim’s death, but it does not follow that death is a proportionate penalty for child rape. The constitutional prohibition against excessive or cruel and unusual punishments mandates that punishment “be exercised within the limits of civilized standards.”
Evolving standards of decency counsel the Court to be most hesitant before allowing extension of the death penalty, especially where no life was taken in the commission of the crime. See, e.g., Coker, 433 U. S., at 597–598; Enmund, 458 U. S., at 797. Consistent with those evolving standards and the teachings of its precedents, the Court concludes that there is a distinction between intentional first degree murder on the one hand and non-homicide crimes against individuals, even including child rape, on the other.

Update: The Sex Crimes Blog will be writing about the case all day. It's coverage begins here.

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Supreme Court Strikes Down Death Penalty for Child Rape | 56 comments (56 topical)

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I agree with the decision but (5.00 / 1) (#9)
by Joan in VA on Wed Jun 25, 2008 at 10:03:43 AM EST

feel somewhat unsettled that it was a close one. I'm against the death penalty but I never thought that it should be applicable in this case regardless.

Personally... (5.00 / 2) (#23)
by JustJennifer on Wed Jun 25, 2008 at 10:52:50 AM EST

I am opposed to the death penalty. However if someone raped one of my children I would kill them myself.

Ok, that is probably emotion talking there and I probably wouldn't be able to go through with it. I do think that anyone guilty of sex crimes against children should not be released to the general public. I have never read anything that definitively proves these types of offenders can be rehabilitated.

Some things not being said (5.00 / 2) (#35)
by txpublicdefender on Wed Jun 25, 2008 at 11:47:25 AM EST

One thing that no one has yet posted about is the historical use of the death penalty for sex crimes in the United States. Before it was outlawed by the Supreme Court in Coker, the death penalty was virtually never imposed on anyone other than a black man accused of raping a white woman or girl (a la the Scottsboro Boys and the fictional, but realistic, To Kill a Mockingbird). Never. It really is a vestige of insititutional racism of the worst order.

And on another issuel, I can't help but think about all the people who were sent to prison for years and years for molesting or raping children at schools and daycares during the "ritual sexual abuse" hysteria of the 80s, and how many of those people could have been executed before almost every single one of the cases was determined to be a massive hoax.

Take a look at the facts of this particular case before the court, for example. Kennedy was the one who called 911 to report that she had been raped. She accused two neighborhood boys of having done it. Authorities, for whatever reason, believed that the real perpetrator was Kennedy. The girl refused to say it was him for some time, even when pressured--there is audio tape of her being interviewed where she says something like, "I know you want me to say it was [Kennedy], but it wasn't." Only after some time, when she was essentially told that she would be taken away from her mother and made to live in foster care if she didn't accuse Kennedy, did she finally say it was him. And the jury still convicted him and sentenced to death. That's how "sure" they were.

This case was interesting in that, on one hand, the facts of the crime--an incredibly brutal rape of a young child by a much older man that resulted in debilitating physical injuries that required surgery to repair (forget emotional injuries)--are a perfect exemplar for a child rape case where the death penalty could be appropriate; but, on the other hand, it was a perfect case from a defense perspective of there being serious doubts about the accuracy of conviction here and why extending the death penalty to even more cases is not appropriate.

I was really worried about this decision, and I am breathing a sigh of relief right now.

Mixed feelings (4.20 / 5) (#1)
by sher on Wed Jun 25, 2008 at 09:19:08 AM EST

In general, opposed to the death penalty; however, if there was a crime that deserved this penalty it would be child rape

It is a gut-wrenching call (none / 0) (#3)
by ineedalife on Wed Jun 25, 2008 at 09:29:05 AM EST

But the perp in such a case is seriously mentally ill. I can't say he is deserving of compassion but he should be treated as a violently sick person. Their sickness requires life imprisonment to protect society since this class is usually can't rehabilitate, in my understanding.

Personally, I think the death penalty tells society it is ok to kill if you feel harmed enough. It fosters more killing. That, and the fact that it is irreversible if you make a mistake, is enough for me to oppose it in all cases.

[ Parent ]

Are they mentally ill? (5.00 / 2) (#16)
by dianem on Wed Jun 25, 2008 at 10:27:49 AM EST

People often attribute deviant behavior to "mental illness", but it isn't really that simple. Yes, some mentally ill people have urges that others do not have. For example, I have bipolar disorder, and when I am under a lot of stress or change medications I'm prone to making bad decisions, like overeating, spending too much money, getting emotional about irrational things (as opposed to my quite rational anger at various political situations <g>), or not getting enough sleep. I have never, however, had an urge to rape a child or hurt anybody in any way. I can't imagine that. I know of other bipolar people who also mess up their own lives, but we rarely see people with this disorder committing violent offenses against others. Schizophrenics, who are often perceived as violent, are almost always not so (in spite of the media's portrayal of them as dangerous). Many serial killers are sociopaths, but I've not heard of that applying to many child molesters. Sociopaths don't empathize with the pain of others - molester's and rapists revel in the pain, taking pleasure in their control of another individual.

I'm not sure that a tendency to rape, either adults or children, is generally a result of mental illness. The people who do this are certainly deviant, but they appear to be able to control their actions enough to cover up their crimes and prevent getting caught. Most mentally ill people have little power to do that - and little desire to do so. When you are in the grip of some kind of mental derangement, you don't feel like you're doing anything wrong.

I point this out because there is a tendency in our society to simply write off all deviant behavior as "mentally ill", which increases the stigma on people who have mental illnesses but who are no threat to anybody but themselves. This discourages mentally ill people from getting treatment. I know that some psychiatrists consider the urge to molest a child a mental illness, but having an inappropriate urge is not the same as acting on it. I think that most rapists/pedophiles are not committing crimes because they are mentally ill, but are using mental illness as a justification for committing egregious crimes.

[ Parent ]

I think my definition of illness (none / 0) (#41)
by ineedalife on Wed Jun 25, 2008 at 12:18:33 PM EST

is much broader than yours. I think by definition someone whose brain chemistry, or wiring, allows them to commit an act most people, and maybe even themselves, find reprehensible is ill. We may not, at this time, understand the underlying basis of the illness. But in time we will.

[ Parent ]

: I used to think that way (5.00 / 2) (#46)
by dianem on Wed Jun 25, 2008 at 03:26:07 PM EST

But by that definition everybody who does anything wrong is mentally ill, and I'm not comfortable with that. Mental illness is a brain chemistry issue in which reality becomes distorted. For example, a depressed person feels that everything if futile, even though it is not. Some criminals are mentally ill, but many simply choose to steal, rape, or murder for personal reasons: financial gain, ego, rage, emotional satisfaction, revenge. They know it's wrong, but feel that they are justified the same way someone feels that they are justified in driving fast or running a red light because they are late to work.
Of course, I've learned a lot about mental illness in the last decade. It's complicated. But I kind of hope that we don't start to include normal "deviancy" as mental illness. We have enough problems dealing with the stigma right now. Too many people already see mental illness as a character flaw. It will only get harder if we start to classify character flaws as mental illnesses.

[ Parent ]

There should (5.00 / 1) (#30)
by tek on Wed Jun 25, 2008 at 11:26:29 AM EST

never be a death penalty without hard, concrete evidence and a confession or perhaps DNA. The unfortunate thing is how often people get away with heinous crimes against children and how devastating such crimes are to the victims. CHildren are completely innocent and defenseless, I believe there should be very harsh penalties for people who prey on children.

[ Parent ]

: Me too (5.00 / 1) (#42)
by ineedalife on Wed Jun 25, 2008 at 12:20:41 PM EST

And I believe a life term is very harsh punishment.

[ Parent ]

I don't get it (none / 0) (#2)
by Steve M on Wed Jun 25, 2008 at 09:28:28 AM EST

Assuming for the sake of argument that the death penalty in general is constitutional (because if you refuse to assume that, there's nothing to discuss), I simply don't understand the argument that life in prison without parole can be constitutional punishment for a given offense but death cannot be.

At common law, for whatever it's worth, all sorts of things were punishable by death, mostly because medieval sanitation made any prison sentence of more than two weeks equivalent to death.

Because Death is permanent (none / 0) (#4)
by Molly Bloom on Wed Jun 25, 2008 at 09:37:14 AM EST

and is irreversible error?

Not sure that what used to be done at common law is relevant, beyond a historical footnote, but you don't seem to be making that argument anyway.

"Once in a while you get shown the light In the strangest of places if you look at it right"
[ Parent ]

is irreversible when done in error (none / 0) (#5)
by Molly Bloom on Wed Jun 25, 2008 at 09:38:48 AM EST

I still don't get it (none / 0) (#6)
by Steve M on Wed Jun 25, 2008 at 09:41:51 AM EST

In what way is that a constitutional argument? If the death penalty is constitutional for first-degree murder, how does one argue that it's unconstitutional for child rape on the grounds that it's irreversible? The death penalty is equally irrevocable regardless of the severity of the underlying offense.

[ Parent ]

you are right. Poor use of brain on my part (none / 0) (#7)
by Molly Bloom on Wed Jun 25, 2008 at 09:45:59 AM EST

Instead of guessing and embarrassing myself, I suppose I should read the opinion.

I suppose my own particular bias is showing.

Proportionality (none / 0) (#8)
by Molly Bloom on Wed Jun 25, 2008 at 09:52:22 AM EST

From the opinion:

Syllabus
1. The Amendment's Cruel and Unusual Punishment Clause
draw[s] its meaning from the evolving standards of decency that
mark the progress of a maturing society." Trop v. Dulles, 356 U. S. 86, 101. The standard for extreme cruelty "itself remains the same, but its applicability must change as the basic mores of society change." Furman v. Georgia, 408 U. S. 238, 382. Under the precept of justice that punishment is to be graduated and proportioned to the crime, informed by evolving standards, capital punishment must "be limited to those offenders who commit `a narrow category of the most serious crimes' and whose extreme culpability makes them `the most deserving of execution.' " Roper, supra, at 568. Applying this principle, the Court held in Roper and Atkins that the execution of juveniles and mentally retarded persons violates the Eighth Amendment because the offender has a diminished personal responsibility for the crime. The Court also has found the death penalty disproportionate to the crime itself where the crime did not result, or was not intended to result, in the victim's death. See, e.g., Coker, supra; Enmund v. Florida, 458 U. S. 782. In making its determination, the Court is guided by "objective indicia of society's standards, as expressed in legislative enactments and state practice with respect to executions."
Roper, supra, at 563. Consensus is not dispositive, however.
Whether the death penalty is disproportionate to the crime also depends on the standards elaborated by controlling precedents and on the Court's own understanding and interpretation of the Eighth Amendment's text, history, meaning, and purpose.

I just never understood (5.00 / 1) (#10)
by Steve M on Wed Jun 25, 2008 at 10:07:10 AM EST

how someone could say the death penalty was "grossly out of proportion to the severity of the crime" for child rape, or adult rape for that matter.

I remember reading Coker v. Georgia in law school and I found it a totally unconvincing decision, although my opinion proceeded more from liberal views about the severity of rape rather than some sort of conservative bloodthirst for imposing the death penalty. It just seems to me that if the body politic wants to impose the death penalty for a particularly reprehensible case of rape, I don't think it's particularly wise to stop them, unless the view is to be that the death penalty is unconstitutional in all cases.

[ Parent ]

The problem for me (5.00 / 1) (#14)
by angie on Wed Jun 25, 2008 at 10:20:08 AM EST

Well, to be upfront -- I'm 100% against the death penalty in any circumstances -- yes, that's right even in cases like Ted Bundy. (I will not bore you with all the reasons the death penalty is profoundly unfair -- just suffice it to say mine are the usual reasons, coupled with actual experience reviewing the records in death penalty cases during my time as a law clerk). Anyway, the problem for me with applying the death penalty to child rape is alluded to in your post -- it will be opening Pandora's box -- if you start applying it to child rape, why not rape? then why not anything else -- why not attempted murder -- heck, the only thing that stopped you from actually killing there was chance. I see expanding the death penalty to any other crime other then murder as the first step to having it apply more broadly, when in fact, it should be ended completely.

[ Parent ]

Slippery slope (5.00 / 1) (#21)
by dianem on Wed Jun 25, 2008 at 10:40:07 AM EST

I'm not a big fan of slippery slope arguments. By this logic, if we allow the death penalty for mass murders, we could end up allowing it for jaywalking. Yes... this is a ridiculous extreme, but, if you think about it, no more ridiculous than suggesting that allowing the death penalty in extreme cases will result in it being used for attempted murders. Personally, I believe in the death penalty, but that it should be reserved for extreme cases in which the offender 1) is guilty beyond a shadow of a doubt (it could not be applied without concrete physical evidence) and 2) has committed a premeditated crime of such horror that they have sacrificed their right to Personhood.

Lawrence Singleton comes to mind. He raped a woman, cut off her arms, left her for dead, and when he was released from prison he murdered a prostitute. If anybody ever deserved to be killed, this was the man. He cut off her arms to keep them from being able to identify her by her fingerprints. That's pretty clear evidence that he was aware that what he was doing was a crime.

[ Parent ]

: I understand your point (none / 0) (#29)
by angie on Wed Jun 25, 2008 at 11:25:30 AM EST

and believe me, the slippery slope argument isn't my only basis for my being against it. As I stated, I'm against the death penalty in all cases -- even extreme ones such as Ted Bundy -- I make no apologies about that because for every "extreme" case where it is used (like Ted Bundy) there are hundreds where it is used that are not like Ted Bundy. And, in my experience, those cases overwhelmingly involve a perp. from a low socio-economic background -- not a race issue, but a class issue. I have no doubt in my mind the same thing would happen for child rapists if the death penalty was applicable to them and that reason right there (without the myriad of other reasons I am against the death penalty) is enough for me to be against it. IMO, if it is not in actual practice applied evenly across socio-economic lines, it should not be applied at all.

[ Parent ]

I'm opposed to the DP. (5.00 / 1) (#31)
by Fabian on Wed Jun 25, 2008 at 11:27:22 AM EST

And for rape? One of the most under reported, under prosecuted crimes? (and often controversial.)

No thanks. It wouldn't improve our justice system.

[ Parent ]

Well (none / 0) (#38)
by Steve M on Wed Jun 25, 2008 at 11:53:20 AM EST

I have no problem with someone being opposed to the death penalty in all cases, but the reason I started my argument with a different assumption is that your position is pretty much a debate-ender.

I want to examine the position of whether, given that the death penalty is permissible for murder, there is a principled basis for refusing to apply it to the most egregious cases of rape. If you don't want to have that discussion because you want to just stand pat on the point that the death penalty should never be applied at all, then there's not much for us to talk about.

[ Parent ]

: But why just for (none / 0) (#40)
by Fabian on Wed Jun 25, 2008 at 12:08:11 PM EST

"the most egregious cases of" anything?
I could support the DP
IFF
All cases had the highest standards of evidence
AND
The perpetrator is unable to be treated or rehabilitated.
But that assumes that a serious and sincere effort to treat or rehabilitate the perpetrator has previously been made, and that's not how our justice system works.

[ Parent ]

Well (none / 0) (#26)
by Steve M on Wed Jun 25, 2008 at 11:22:36 AM EST

Keep in mind that I'm not suggesting it would be appropriate to impose the death penalty in all rape cases, or all child rape cases, only that I can't really understand the logic for taking the option away from society even in the most extreme and egregious cases of rape.

[ Parent ]

I think what you struggle with (5.00 / 1) (#20)
by TeresaInSnow2 on Wed Jun 25, 2008 at 10:35:51 AM EST

is the fact that the death penalty isn't proportionate to any crime. When you try and find a bright line at which it's acceptable/unacceptable, you won't find it.

[ Parent ]

I disagree with (none / 0) (#33)
by tek on Wed Jun 25, 2008 at 11:32:50 AM EST

that statement. You can't believe that abortion is okay, especially in cases where families or individuals have to choose between the greater worth of one life over another, and then believe that willfully, purposefully, premeditatively taking the life of another full-fledged human being can never be an appropriate punishment. For instance, the man in Orange County in 2003 who kidnapped a 5 yr. old out of her grandmother's front yard--the child screaming and struggling--and took her to his mother's apartment and tortured her in some way the police couldn't even repeat, raped her, killed her and threw her disfigured body out on the freeway. It wasn't his first offense either. He'd gotten aquitted in the past. Maybe he was mentally ill, but that doesn't help his victims. If these people can't be forced to sacrifice their own lives for the lives they steal, then the law has to do a better job of separating them from society before they find the opportunity to visit such grievous crimes on innocent people.

[ Parent ]

: Well... (none / 0) (#43)
by TeresaInSnow2 on Wed Jun 25, 2008 at 12:25:47 PM EST

In that case the death penalty is too easy a punnishment -- again, not proportionate.
Killing this man you mentioned wouldn't have stopped what he did prior to the killing. And he was aquitted in the past. Acquitted, meaning they didn't have enough evidence to convict. Are you saying that every person accused should be convicted too? That would be the only way to prevent his last offense.
I don't feel that killing is a good remedy for killing. It sets the government on the same level as the killer. That's just me -- form your own opinion, you're entitled. In the days when prisons were low-tech, it made more sense. Now that we truly can imprison people for the rest of their lives, we don't need to stoop to those people's level.
And don't equate the death penalty with abortions. The two aren't equivalent in any way. I'm a woman and I have a right to control my own body.

[ Parent ]

I see Steve M's point (none / 0) (#24)
by kempis on Wed Jun 25, 2008 at 10:57:38 AM EST

although my opinion proceeded more from liberal views about the severity of rape rather than some sort of conservative bloodthirst for imposing the death penalty. It just seems to me that if the body politic wants to impose the death penalty for a particularly reprehensible case of rape, I don't think it's particularly wise to stop them, unless the view is to be that the death penalty is unconstitutional in all cases.

You summed up my initial reaction. Thank you.

I confess that when it comes to rape, especially child rape, I'm reactive--as are most people. If it happened to a child in my family, I'd be inclined to hunt down the perp myself--as old as I am.

But the Supremes have to review these matters dispassionately and with an eye on the larger picture. My vengeance genes don't necessarily make for good law.

I'm curious to see on what grounds the conservative justices dissented. State's rights?

[ Parent ]

: I'd guess . . . (none / 0) (#32)
by txpublicdefender on Wed Jun 25, 2008 at 11:32:27 AM EST

Having not read the opinion, I am guessing that the dissenters reiterated their disagreement with the "evolving standards of decency" line of 8th Amendment cases. They really hate that. I believe that Scalia and Thomas believe that if it wasn't considered cruel and unusual at the time of the founding, then it is not cruel and unusual now. It's a reasonable arugment, albeit one I disagree with.

[ Parent ]

5-4, 5-4, 5-4 (none / 0) (#11)
by MissBrainerd on Wed Jun 25, 2008 at 10:08:36 AM EST

These recent rulings show how precarious the court is right now if you are a progressive.

Just noticed? (5.00 / 1) (#13)
by angie on Wed Jun 25, 2008 at 10:12:10 AM EST

That's been going on since Roberts was appointed.

[ Parent ]

: Did I say I just noticed it? (none / 0) (#18)
by MissBrainerd on Wed Jun 25, 2008 at 10:28:58 AM EST

It has been going on since the court was skewed with Alito and Roberts. That doesn't make it any less scary.

[ Parent ]

The Democratic Congress (5.00 / 3) (#19)
by TeresaInSnow2 on Wed Jun 25, 2008 at 10:31:59 AM EST

needs to grow a spine and keep people like Alito and Roberts OUT in the first place.

[ Parent ]

Thank God (none / 0) (#12)
by angie on Wed Jun 25, 2008 at 10:10:35 AM EST

I'm actually from NOLA and I was a law clerk on the LA Supreme Court and I remember when the state legislature passed that law. I bet then that the USSC would overturn it (didn't have faith that the LA SC would do the right thing (they are elected not appointed) -- except for my judge, CJ Calogero -- when he retires in about 2 years that court is really going to go down the drain)-- I'm going to have to call in my markers.

Ugh (none / 0) (#15)
by boredmpa on Wed Jun 25, 2008 at 10:26:30 AM EST

Am I the only one that thinks this is about to be a pol/fox news talking point?

: No (none / 0) (#17)
by andgarden on Wed Jun 25, 2008 at 10:28:45 AM EST

[ Parent ]

Left intact (none / 0) (#22)
by Ben Masel on Wed Jun 25, 2008 at 10:51:29 AM EST

Bill Clinton's Death Penalty for Hemp farmers, enacted in the 1994 Omnibus Crime Control Act, and celebrated in the 1996 Democratic Platform. (One of the "60 New Death Penalties.")

The provision was not removed from the P:latform until 2004. Thank you Sen. Kerry.

Democratic Candidate for US Senate. WI 2012

From the decision (none / 0) (#25)
by Ben Masel on Wed Jun 25, 2008 at 11:10:14 AM EST

"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 victim's life was not taken."

Democratic Candidate for US Senate. WI 2012
[ Parent ]

Interesting (none / 0) (#28)
by Steve M on Wed Jun 25, 2008 at 11:23:57 AM EST

that the State has a greater interest in punishing crimes against itself as opposed to crimes against one of its citizens, even though the State is nothing but a creation of those same citizens.

[ Parent ]

The decision didn't say that (none / 0) (#36)
by Ben Masel on Wed Jun 25, 2008 at 11:48:47 AM EST

the State has a greater interest, just made clear they were noyt reaching that question.

Democratic Candidate for US Senate. WI 2012
[ Parent ]

Well (none / 0) (#39)
by Steve M on Wed Jun 25, 2008 at 11:54:32 AM EST

unless there is at least a possibility that the State has a greater interest in prosecuting crimes against itself, there wouldn't even be a reason to reserve that question at all.

[ Parent ]

There is a reason (none / 0) (#47)
by txpublicdefender on Wed Jun 25, 2008 at 03:50:51 PM EST

The reason to reserve that question is that it wasn't before the court. Courts aren't supposed to decide questions not squarely before it in the case presented.

[ Parent ]

Sure (none / 0) (#48)
by Steve M on Wed Jun 25, 2008 at 04:00:48 PM EST

And they didn't decide several billion other questions, either, none of which are expressly referenced in the opinion.

Expressly noting that an issue is not being reached constitutes confirmation that the issue is unsettled, which is exactly what I said. It's at least possible that the State has a greater interest in punishing crimes against itself than it has in punishing crimes against one of its citizens. Are you denying that the Court expressly left this door open?

[ Parent ]

: No (none / 0) (#52)
by txpublicdefender on Wed Jun 25, 2008 at 06:49:28 PM EST

No, I'm not denying it. But the fact that they left it open doesn't mean that they think that the death penalty is OK in those cases either. All they said was that they were not deciding that question in this case. The reason they specifically referenced it was because they wanted to be clear that this case, although related to that issue, should not be read to have decided that issue. That's all it means. It is prudential and completely standard for a court to reserve ruling on a question not squarely presented. It doesn't mean they would have ruled one way or another.

[ Parent ]

I'm (none / 0) (#27)
by tek on Wed Jun 25, 2008 at 11:23:12 AM EST

not a proponent of the death penalty, but as a mother and grandmother I believe this decision is wrong. The child's life is permanently damaged whatever the intention. If we had more women on the Court, we would see some different rulings on sexual crime.

I would be dissenting on this opinion. (none / 0) (#34)
by halstoon on Wed Jun 25, 2008 at 11:34:23 AM EST

I'm a Democratic voter, but I think child rapists should be eligible for the death penalty. It may not result in the child's death, but their childhoods are certainly ended, and their psyches are altered in a way that can never be reversed. They may not die, but in some ways they'll wish they had.

Child predators have a special pathology in my opinion that should qualify them for death. They are every bit as dangerous as the kid who killed the cashier during a robbery.

I am a DP supporter. (none / 0) (#37)
by sarcastic unnamed one on Wed Jun 25, 2008 at 11:52:21 AM EST

As horrific as child rape is, I think the DP should be reserved for murderers only.

In fact, until I read this thread, I was unaware that there are crimes other than murder which are eligible for the DP.

This decision (none / 0) (#44)
by Categorically Imperative on Wed Jun 25, 2008 at 02:54:11 PM EST

On its own merits, is garbage. Personally, I am anti-death penalty, not for moral reasons, but because I don't think our justice system is reliable enough to impose death. That said, Kennedy's "reasoning" doesn't make a lick of sense. Alito, whatever your opinion of him, does a masterful job tearing the majority opinion apart.

Kennedy's "national consensus" 8th Amendment jurisprudence is getting more absurd each time out.

How about (none / 0) (#45)
by Left of center on Wed Jun 25, 2008 at 02:57:11 PM EST

surgical castration? Nobody gets killed, although the rapist will probably kill himself, but that's on him.

Steralization has already been decided (none / 0) (#49)
by angie on Wed Jun 25, 2008 at 06:00:16 PM EST

and declared unconstitutional -- Skinner v. Oklahoma. I don't see how castration would be any different. Furthermore, it is a little too Nazish for my taste -- I'd fight against it -- yes, even in the case of child rape. There are some things that the government should just not be allowed to do no matter the circumstances.

[ Parent ]

Actually (none / 0) (#50)
by Steve M on Wed Jun 25, 2008 at 06:07:56 PM EST

Skinner v. Oklahoma never even got around to discussing the Eighth Amendment issue, it was an equal protection case. So I don't believe there's any clear ruling out there that compulsory sterilization counts as cruel and unusual punishment.

[ Parent ]

: No, but the same analysis would apply (none / 0) (#56)
by angie on Thu Jun 26, 2008 at 09:27:59 AM EST

If I wasn't clear (and I obviously wasn't) I would make an equal protection argument (as in Skinner) against compulsory castration.

[ Parent ]

Does no good (none / 0) (#53)
by txpublicdefender on Wed Jun 25, 2008 at 06:51:42 PM EST

FWIW, studies show that castration doesn't really do much good as far as preventing the deviant urges for sexual predators.

Obama, per NPR, thinks the states should be able (none / 0) (#51)
by jawbone on Wed Jun 25, 2008 at 06:20:42 PM EST

to impose the death penalty for child rape--which suggests to me he thinks they have carte blanche to impose the death penalty.

I'm not sure I see a reason for him to come out with a statement about this particular case. Any thoughts? Just a political reaction? Or more Republican Lite? A genuine belief in the death penalty?

It does make me wonder yet again what kind of justices he would want to see on the SCOTUS.

Antoher disappointment for me, as I am anti-death penalty. I would have thought that given all the problems IL experienced with the death penalty, he would be cautious about advocating for the expansion of it. Interesting.

: BHO tacks to the right if he had a blog (none / 0) (#54)
by Redshoes on Wed Jun 25, 2008 at 08:22:06 PM EST

it would be called TalkRight.
BHO's statement on the case is a disappointment but interesting that he shares McCain's view that the court got this wrong. Which one again was the constitutional law prof?

[ Parent ]

I just can't believe it (none / 0) (#55)
by frankly0 on Wed Jun 25, 2008 at 11:22:30 PM EST

This is a supposedly progressive blog, and yet I find all kinds of sympathy for imposing the death penalty in a case in which no one's life was taken, or intended to be taken?

Get a grip, people. Have people so lost their perspective about child rape that they can't see how it is clearly less of a grievous offense than actually taking someone's life? I don't know about how exactly "child rape" is defined in the law in question, but if it means merely to engage in intercourse with an underage child, that's got to be a very, very common offense. A few decades ago it was not considered a crime from which its victim could never recover and lead a reasonable life. Apart from the hysteria currently surrounding it -- thanks in very large part to the sensationalistic media and the shifting of all sexual taboos to the area of sex with children (an activity in some cultures considered not abnormal) -- there is simply nothing that should push it into the same category of heinousness and gravity as the taking of another life.

Really, is child rape a more permanently damaging crime than physically maiming someone, or disfiguring them? Do we even think of imposing the death penalty in such cases?

So why fall in with the hysteria that says child rape is far more heinous, and every bit the equal of premeditated murder?

And, you know, there are some of us progressives who think that the death penalty is not right even in the case of premeditated murder.