Kennedy v. Louisiana:
SCOTUSBlog is reporting that the Supreme Court struck down the Louisiana child rape statute 5-4 in Kennedy v. Louisiana on the ground that the statute punihses conduct not intended to cause death, with AMK writing joined by the four liberals. Stay tuned for more.
UPDATE: The opinion is here. The opinion is rather Roper-esque, on a first read. AMK concludes that "there is a social consensus against the death penalty for the crime of child rape," and that the Justices in the majority agree with this consensus. From the conclusion:
ANOTHER UPDATE: Justice Alito's dissent is pretty devastating, I think. From the dissent:
UPDATE: The opinion is here. The opinion is rather Roper-esque, on a first read. AMK concludes that "there is a social consensus against the death penalty for the crime of child rape," and that the Justices in the majority agree with this consensus. From the conclusion:
Our determination that there is a consensus against the death penalty for child rape raises the question whether the Court’s own institutional position and its holding will have the effect of blocking further or later consensus in favor of the penalty from developing. The Court, it will be argued, by the act of addressing the constitutionality of the death penalty, intrudes upon the consensus-making process. By imposing a negative restraint, the argument runs, the Court makes it more difficult for consensus to change or emerge. The Court, according to the criticism, itself becomes enmeshed in the process, part judge and part the maker of that which it judges.One response to Justice Kennedy would be that only the Court "established" this proposition; it seems a bit curious to defend the Court's "enmeshed" role by saying that it must be because the Court has given itself that role (especially when its proper application in this case is far from clear). More broadly, does this passage categorically prohibit the death penalty in cases that do not result in death, such as treason? That would be quite a significant change.
These concerns overlook the meaning and full substance of the established proposition that the Eighth Amendment is defined by “the evolving standards of decency that mark the progress of a maturing society.” Trop, 356 U. S., at 101 (plurality opinion). Confirmed by repeated, consistent rulings of this Court, this principle requires that use of the death penalty be restrained. The rule of evolving standards of decency with specific marks on the way to full progress and mature judgment means that resort to the penalty must be reserved for the worst of crimes and limited in its instances of application. In most cases justice is not better served by terminating the life of the perpetrator rather than confining him and preserving the possibility that he and the system will find ways to allow him to understand the enormity of his offense. Difficulties in administering the penalty to ensure against its arbitrary and capricious application require adherence to a rule reserving its use, at this stage of evolving standards and in cases of crimes against individuals, for crimes that take the life of the victim.
ANOTHER UPDATE: Justice Alito's dissent is pretty devastating, I think. From the 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.Of course, there's a deeper question lurking in the opinions: Is the Eighth Amendment a general tool for invalidating criminal laws that the Justices think are too punitive and therefore unwise? Or is it only a specific tool for invalidating punishments that are way out of the mainstream? I think that's the real 5-4 split on the current Court, and that it explains the vote break-down in this case.
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.
hmmmmmmmmmmmmmmmmmmmm
Uh, the theory wasn't a lack of a recent opinion, but rather that Justice Scalia is the only one from the MARCH session who has not written an opinion. That is still the case.
I always love these arguments. So if 30 or so states started capitalizing child rape, despite such laws being unconstitutional under this case, would the court change its mind?
This approach is ridiculously hypocritical, because it a) recognizes that societal mores can change, b) decrees that such changes will be reflected in the constitution, but c) simultaneous prevents any further constitutional change.
I believe HELLER and GILES are from different terms (i.e., the term in which the case was herd, not when the opinion was released). The rule is one opinion per term, so that means Scalia is on the hook for HELLER.
In light what was done to the 8th Amendment today, wouldn't surprise me the court would rule Osama bin Laden has a constitutional right to build an atomic bomb under Times Square.
And I'm not even against this decision! Compare the squishiness of these Kennedy death penalty opinions with those Blackmun/Marshall or even Powell used to pen on occasion. The reality is that, however many years from now, when Kennedy is gone or the court's composition changes one way or another, future cases will wash away this kind of analysis. But the issue is that it will be easy to do so, when each one hangs on inference piled upon conjecture.
There will be no cognitive dissonance from me. I don't have a problem with the Supreme Court as an institution. I have issues with its liberal wing.
I'll be fascinated to hear learned discussion of this. On a quick flip, Alito's dissent is crushing to me, at least.
It's not a good reason for a court to say that the death penalty is "cruel" or "unusual" and therefore unconstitutional when applied to child rapists who don't kill or intend to kill their victims.
But as a practical matter, I think there's alot of merit in Kennedy's argument that imposing the death penalty in child sex cases presents a peculiar, and probably unacceptable, risk of wrongful execution. Of course, that same risk is unacceptable when it comes to committing somebody to prison for decades, which is all the more reason to overturn Maryland v. Craig.
Ahem. Sorry. I just wanted to fit in.
Evolving standards of decency is the biggest bunch of B.S. in the history of the court, even worse than the B.S. penumbras and emanations permitting baby murder.
There ARE no evolving standards of decency. Humanity is still as sinful as ever before. The only thing we're good at is hiding it. This entire rule of interpretation is built on a lie. If the state doesn't adequately punish baby rapists, you can bet your ass that vigilanties will.
This is a fundamentally unjust decision. The Court's dismissal of its role in the process is only based upon a ratchet that permits more restriction of the death penalty. There is nothing like that in the Constitution that permits laws to go only in one direction, with slowly increasing unconstitutionality. It is absurd. There is no way this decision can be defended on any rational grounds at all. It's merely an exercise in power.
In response, I advocate more perp walks ala Lee Harvy Oswald - in public, surrounded by people with guns.
No. Kennedy explicitly distinguishes treason and other crimes against the sovereign later in the opinion.
Damn straight.
Of course, it leaves room for the evolving standards of decency to trump the Constitution's own approval of execution for treason. Count me among Kennedy's (the man and the opinion) critics.
If you accept the implication of that argument, wouldn't you be committed to opposing, say, the (current) place of the Supreme Court vis-a-vis the Constitution &the political branches, a la Marbury?
Even if that's not the case, another related, but tangential question: does anyone (who is rational, thoughtful, or worth listening to (and just being controversial is not good enough reason to listen to someone in my book)) seriously argue that Marbury should go? Or is Marbury at that point where to overturn it would be to gut the meaning of stare decisis?
That is just badly and empirically false. Humanity is tremendously more peaceful today than in any other period of history, but believe whatever you want.
Whatever the merits of the case are, the zeitgeist is only moving in one direction. The death penalty is on its last throes.
The Court explicitly distinguishes crimes against the sovereign on slip op p.26.
Spit in front of him? Spit AT him. Kennedy needs to be shunned and humiliated for his despicable actions. I advocate protests at his house and his relatives' houses.
You do realize that there are many in society that will institute the death penalty by themselves, should some animal do something like this to a member of their family.
No law can change this fact. You might not like it, but I know that as a parent, if an animal did anything like this to my kids, they would receive the death penalty. No if's, and's or but's about it.
That is categorically false, or else this law never would've been passed at all. But have fun living in your delusion.
Same here. The sad thing is that you COULD (constitutionally) be executed by the government for what you did, although I would hope that no jury (or judge) would even convict you of 1st-degree, much less sentence you to death.
When they outlaw guns tomorrow, you'll be forced to use a knife.
This from the last paragraph really cements it. Read those last two paragraphs, and it's clear that the majority sees the law as being on a road to a destination, and that destination looks like it includes -- among other things -- total abolition of the death penalty. There are "marks" along the way, and Kennedy has dutifully taken us one step at a time along that path, but obviously we are only going to be allowed to move in one direction along this line until we reach "full progress" and have completely matured.
This is the most smug, elitist garbage I've read all term. And it shows how lefties completely miss the point of our nation's existence. The Constitution is not a "progressive" document leading the way toward some future evolution of society and law. The Constitution is a recognition of the unchanging, eternal, natural and inalienable rights of man, and sets forth a way for men to govern themselves while respecting those rights. It's time for Trop v. Dulles to be overturned, "proportionality" review to be forbidden, and a less malleable definition of "cruel and unusual punishments" be put in place.
At least we can see how they arrive at their conclusions and judge them based on that evidence. Our lawmakers and executives do their best to hide that information and instead tell me that Daddy knows best.
As Pinker notes in his talk, there was a crash in violence and crime over history, bottoming around WWII, with a little pick up starting in the 60s. This rise peaked in the 90s and have been pretty much receding since then. Those peaks and valleys seems to coincide with the chart, but we'll see how things ultimately pan out.
The could try to outlaw guns, (although I think Heller will go our way), but that doesn't mean I would obey any such laws.
"From my cold dead hand".
"Daddy knows best" is about what the reasoning in Justice Kennedy's opinion comes down to. Unfortunately, we can't vote him out in November.
p.26-27 of Justice Kennedy's opinion: "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 victim’s life was not taken."
True. Routine violations of laws will be common as the nanny state clamps down. As state legislatures are forbidden to punish child rapists, as our government is required to release terrorists on bail, as guns are outlawed, people will increasingly take the law into their own hands.
Given our disgusting court system that sees its own power as its only goal, I have to think that people taking law into their own hands is on the whole a good thing.
Amazingly enough, the court sycophants that normally inhabit this blog are scarce today.
Kennedy is a disgusting person and deserves complete contempt. Why in hell should I respect the man at all?
I'll grant you that protesting outside his relatives' houses is a bit absurd, but I can certainly understand the anger DangerMouse is feeling right now. (And protesting outside his own place isn't a crazy idea. I don't agree with it, but it's not something that justifies your comment.)
It's amazing that the same liberals who think the death penalty is so wrong for taking a life and should be abolished completely or only used for the most serious of crimes seem to have no problem saying that there is a constitutional guarantee to be able to take a life when it comes to abortion, and for the 4 liberals a constitutional guarantee that the state has to pay for it and supply it.
Kennedy is an awful justice. Even if he does affirm the DC Circuit tomorrow his opinions are among the worst in the history of the Court.
This just shows the importance of getting that 5th conservative on the bench. It looks like an uphill battle for McCain but if he is able to win he woulod be able to save the court.
On the bright side, Alito's dissent was oretty strong, although I'm surprised that Scalia or Thomas didn;t write in this case. They usually write in death penalty cases, especially ones as awful as this one dealing with the evolving standards claptrap.
The only thing I can think of is perhaps Scalia was focused on keeping Kennedy on board for his Heller opinion so he didn't want to do anything to rock the boat by criticizing him here.
Also, based on the past few terms, I think it's fair to call Alito and Roberts good choices by Bush.
Well, we all know Kennedy can't wait for Salzburg now. Rights for terrorists and child rapists, he'll be the returning hero.
Perhaps the ratio of sound to noise in the comments of this thread have led to the conclusion that most of those people posting aren't interested in a discussion? I know that's my conclusion. Professor Kerr succeeds in being civil, polite, and substantive in his post. Could those commenting perhaps strive for the same qualities?
I say we send him to Gitmo and then spit at him. Then we burn him as a witch for consorting with Satan.
The SCOTUS has become the morality police of our country. Wonder what people would think if the "evolving standards of decency" turned suddenly ultra-conservative?
Think it's bad now, wait until Obama is president and we have 4 SCOTUS retirements.
I don't really agree that Alito's dissent is "devastating," but I do agree that in the absence of a realistic attempt to counter the dissent's concerns the majority opinion is severely weakened. I just dislike this style of opinion.
(That's not intended to compare the merits of the cases. Only the tone of the commentary.)
You certainly do not have to respect Justice Kennedy, but I don't think it's civil to urge spitting on him. And you have no basis to call him "a disgusting person," as you do not actually know him. You may not value civility, but I do, and your bizarre personal rants are not welcome here. It lowers the value of this blog and coarsens it; if you want to comment here, keep it civil or I will not permit you to comment.
There are times for sipping cocktails and politely discussing the issues of the day and then there are times where outrage and protest are the proper response. This decision is getting as much respect as it deserves.
Justice Kennedy's position is absurd.
The "evolving standards" principle doesn't require that the DP be "restrained" or "limited" to only the "worst of crimes". The principle holds that Amendment 8 should be interpreted in light of "evolving standards of decency of a maturing society", which must mean that the evolving standards are to be respected regardless of whether those standards evolve in a direction towards limiting, OR expanding, the use of capital punishment. After all, we have no way of knowing whether having the DP for a given crime is a mark of societal "maturity" or not.
What an abject failure on the part of Justice Kennedy ...
The other two branches can only "correct" the Supreme Court when the issue is one of statutory (or regulatory) interpretation. When the issue is whether a law is constitutional as written, the only way any other branch can correct it is by amending the constitution. Or appointing Justices who would be willing to overturn this new precedent.
Any law passed by the federal or state governments making child rape a capital crime will be unconstitutional from its inception, now. Conceivably, they could still pass them, but they couldn't be enforced (and remember, one of Kennedy's arguments is that even among the few states that permit execution of child rapists, enforcement of that execution is rare).
I didn't mean to suggest that the quote was devastating, but rather that the opinion was devastating. That's why I said the opinion was devastating, not the quote.
I suspect that what gets rabid political partisans so worked up about Kennedy is that he's perceived as a turncoat, which is worse than a diehard opponent. Ginsburg is Ginsburg, after all--but Kennedy was supposed to be on "our" side!
Personally, I see one consistent trend in Supreme Court opinions: sometimes the left wins, sometimes the right wins, sometimes "originalism" wins, and sometimes "living Constitution" jurisprudence wins, but through it all, the Supreme Court's power to overrule the democratically elected branches of government, and replace their wishes with its own, always seems to expand, and never to retreat. And the number of people who complain about that consistently--as opposed to only when it suits their political preferences to do so--always seems to be vanishingly small.
Then, of course, we must weigh in with "our own judgment" on the issue -- ugh, don't even want to go there.
I've long considered myself a believer in the idea of the "living constitution", but as time goes on, I become more and more convinced that Scalia-style originalism is the only principled philosophy of Constitutional interpretation (as much as the results might often be unpalatable to me as a matter of policy).
This was a horrible decision. How on earth can the 8th amendment not permit the death penalty for this crime, when the very people who wrote the 8th amendment believed that this is a crime for which the death penalty applied?
I'm not sure that this is true. I seem to recall that historical surveys have found that prior to the twentieth century, sexual assaults on children were often not regarded as very serious. (If someone can confirm either way please do.)
Incidentally, if that's correct, I don't think that would provide a basis for holding that such crimes are not constitutionally punishable by death. To the contrary, I think that would show the limited value of looking to historical context to establish what crimes may be punishable by death.
"Suppose that we simplify the court's Eighth Amendment jurisprudence greatly and pretend that a "national consensus" against a certain type of punishment exists when 10 states or fewer authorize that punishment and not otherwise; and that when a national consensus against a punishment comes into existence, the courts will strike down that punishment in any remaining state that continues to use it or any state that introduces it.
This rule acts as a ratchet. When a punishment falls to the 10-state threshold, it ceases to be permissible. If people in the various states change their minds and come to believe that the punishment is justified, legislatures will not be able to enact the punishment without violating the Constitution. It seems likely that they will therefore not bother, and so a new consensus in the other direction cannot get started. Perhaps, in the rare instances when a national consensus will develop quickly, dozens of states will enact the law even though it violates the Constitution, and courts will recognize a change in the consensus. But this is likely to be rare, and it loads the dice against national consensuses developing in favor of harsher punishments.
If the Eighth Amendment is just about national consensus or some such thing, why can't a consensus emerge in favor of a punishment that previously had been barred? The dissent in Kennedy v. Louisiana makes this argument, which is acknowledged but rejected (without any attempt at justification, as far as I can tell) by the majority.
Is there any justification in political, constitutional, or moral theory for such a ratchet? I don't see one. There is an old, simple-minded Whig view that human history reflects progressive moral development, and perhaps the idea is that courts can prevent temporary backsliding caused by public overreaction to ephemeral events—and such rhetoric about society "maturing" can be found in Justice Kennedy's majority opinion. But this view took a hit in the 1930s and has never recovered. And even if it were correct, a society might "mature" by introducing new harsh punishments against behavior—such as spousal and child abuse, or, say, honor killings of daughters—that earlier generations found unobjectionable. Current Eighth Amendment jurisprudence, or at least the logic behind it, would block such moral evolution."
BTW, I don't think it would necessarily be a bad policy to limit the death sentence to murderers but that would be only my own policy preference. Unfortunately, not everyone seems able to make such distinctions.
I cannot express fully my growing disdain and disgust for a jurist I once admired, but who, IMHO, has abandoned his proper role on the Court in recent years. It's not for the court to ferret out "social consensus" but to state whether X is or is not Constitutional. The dissenters are absolutely correct.
From your lips to God's ears...
In our system the Constitution is the "highest" law we have and other laws (like statutes passed by the legislature or executive orders) that conflict with it are invalid. By purporting to find a constitutional prohibition of the death penalty in these cases the court invalidates both existing statutes, and prospective statutes (new ones the states might enact in the future) that don't comply with what they think the Constitution says. The only "solution" (if you think the law should be something different) is a new decision by the court overruling this one (new justices are appointed and they think this court "got it wrong") or a constitutional amendment (requiring 2/3 vote in Congress and ratification by 3/4 of the states).
The other eight Justices are either better at dressing up their personal preferences as "law," or they're better at being actual judges. Justice Kennedy trotted out the state-counting approach in Roper, and now that it doesn't support the result he wants in this case, he's pulled it back.
I have no idea what he's like as a person, but as a Supreme Court Justice, he deserves nothing but contempt.
And the vitriol isn't necessarily partisan. His opinion in Gonzales v. Carhart (2006-07 term, partial birth abortion) was similarly awful, and his concurring opinion in Hein v. Freedom From Religion is just a joke.
One almost gets the sense that the court no longer believes its opinions need be persuasive. Of course given the number of decisions that are really hard to defend and yet still respected, who can blame them?
I couldn't have said it better.
"It should not be introduced into our justice system, though, where no death has occurred" (p.30)
What the heck not
JusticeOverlord Kennedy?That was a great talk. Thanks for providing the link.
Sincerely,
Corkie the Dog
I don't think this case leaves any sort of grey area where states can test the boundaries with various types of restrictions, as they can with abortion.
Also, I would point out to the vermin who are shrieking that the sky is falling that this wasn't a habeas proceeding. It's not like the alternatives in this case are death or freedom. Life with no possibility of parole is not exactly a trip through the Elysian fields. In fact, many of us who oppose the death penalty might suggest that a quick and painless death is too good for the rapist.
What can it possibly mean to say, as Justice Kennedy does at 9, that retribution, of all the rationales of punishment, "most often contradicts the law's own ends"? Justice Kennedy then goes on to make the point that the retributive rationale for the death penalty "risks its own sudden descent into brutality, transgressing the constitutional commitment to decency and restraint." Setting aside the argument that this represents a very thin and unsatisfying understanding of retributivism, why cannot the other functions of punishment mentioned by the Justice equally "contradict the law's own ends...transgressing the constitutional commitment to decency and restraint." With all due respect to Justice Kennedy, this was a completely unnecessary and unsupported statement. Why make it, other than to pad a decision with something that sounds profound?
Fine, I won't advocate personal injury to the Justices HERE. But if you think that what I'm saying is out of the ordinary, you need to get out more. People in America know that the Court is a sham, and that people like Kennedy are tyrants hiding behind a curtain, and they're not going to put up with it much longer. The delusion is that by treating as respectible what normally should be contemptible, you're acting civilized. All you're doing is putting lipstick on a pig.
For my part, I couldn't care less about whether Patrick Kennedy is lethally injected 15 years from now when his habeas stuff fails or whether he dies in prison. What bothers me is the lawlessness of the decision.
It's a good thing that the Executive and Legislative branches never do anything to increase their power - indeed it is a good thing that legislators and executivese are so power averse that they never even seek re-election.
It was considered serious on a federal level. In 1807 when Congress limited the use of the death penalty for many crimes, death for rape remained.
I'd like to point out the irony of asking for civility while calling everyone who doesn't agree with you 'vermin'. One can also call attention to the fact that many times heinous offenders lack real social functionality to begin with, and that the structured life of prison, complete with meals taken care of and entertainment accessible, is personally acceptable to them. I understand that proposition would be absurd to a normal person, but heinous offenders are most time far from normal people. So there exists on principal the situation that you may put an offender into a situation of acceptability for them, on the publics money, as 'punishment'.
Even so, that's all off-topic to the central issue, and in that this reminds me of the SSM topic(s) of awhile back. The Judiciary goes beyond legal boundaries into purely subjective social choices that should be handled by the Legislator, and proponents of the social outcome cheer. In this case, the thread is suspiciously filled with folks not dealing with Judiciary conduct, but the convenience of this decision to the anti-Death Penalty crusade.
Can you seriously advocate that "cruel and unusual punishments" is content-rich?
I'm for killing rapists of all kinds (among certain other non-murderers), so I WOULD appreciate a practical explanation of what I'm supposed to do to help those standards evolve, rather than being dismissed as missing the point.
I can't speak for all liberals, but speaking for myself only, I am very proud of the Court for these decisions.
OTOH, the rage I see expressed on a blog even such as this is disturbing in the extreme.
Tut tut! We must be civil! You're supposed to SMILE when your masters enslave you. That's the ticket.
Yeah, rage against Tyrants has no place in our policial discourse!
In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince, whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.
That darn Jefferson. Such an uncivil guy.
Thus, rhetoric about leaving things to the legislature or about the undesirability of judges making policy arguments doesn't really get us anywhere in interpreting the Eighth Amendment. Nor does originalism-- nobody but the most closed-minded person (or a person who really thinks there's nothing wrong with cruel punishments) would say that anything that was in practice in 1791 could never be barred no matter how cruel it was.
So, in the end, the cruel and unusual punishment clause isn't going to mean anything else but whatever 5 justices on the Supreme Court say it means. They may dress it up with legal reasoning, but that's the truth. And those looking for a principle are going to be disappointed.
It's interesting, then, that Kennedy explicitly says that Coker did not extend to cases of child rape. I think Justice Alito has the better of the argument overall, but I like the fact that Kennedy acknowledges the ambiguity of Coker and disavows it as the basis for this decision.
The takeaway might be that if Kennedy's going to rule for you, he doesn't need no stinkin' precedent for cover -- he's going to be with you in full force (I think Dahlia Lithwick made a similar point a few days ago, in the Slate article contrasting Kennedy with O'Connor).
alkali wrote: "I'm not sure that this is true. I seem to recall that historical surveys have found that prior to the twentieth century, sexual assaults on children were often not regarded as very serious. (If someone can confirm either way please do.)"
It was considered serious on a federal level. In 1807 when Congress limited the use of the death penalty for many crimes, death for rape remained.
I'm having trouble finding the act of Congress you're referring to here. (Indeed, I was under the impression that federal criminal law was mostly common law until 1812.) If you have a cite I'd be obliged.
When the hell did the judiciary become the branch charged with divining social consensus? It is the social consensus that leaving the toilet seat up is wrong, so we declare such activity to be a federal crime!
Leaving aside the disturbing constitutional analysis, could states test this language by enacting a statute that provides for the death penalty for child rapists who were also intent on killing the child, but for whatever reason, failed?
2) How is the rape of a child any less of a crime against the state than the crimes of a drug kinpin or trafficker?
I can understand separating out treason and espionage from other crimes -- and maybe "terrorism," properly defined. But what about "drug kingpin activity"? Why is that categorically different from, say, insider trading or prostitution? If the answer is that "drug kingpin activity" rots the state from the inside, then what about bribery of public officials? Doesn't it do so, as well? By definition, all crimes are offenses against the state, whether or not there is an individually identifiable victim. This purported distinction drawn by the opinion is just more Kennedy ipse dixit.
"That darn Jefferson. Such an uncivil guy."
Serious delusions of grandeur, my friend.
Well said. I think your answer to our joint inquiry is the only plausible one, and to say that it is weak is a gross understatment.
If anyone has any doubt that Kennedy was reaching for a result without having any ability to justify his conclusion, this problem should change your mind.
A cynic might point out that Kennedy relied on the fact that Coker did not extend to child rape in order to show that even though legislatures were free after Coker to authorize the death penalty for child rape, few did so. So, either interpretation of Coker supports Justice Kennedy's position (in his eyes).
I didn't say I'm for killing accused rapists, so false allegations aren't relevant. Of course, there are practical problems in identifying the guilty, but it's mere sentimentalism (or religious dogmatism) to prefer life imprisonment to the death penalty. Like non-vegetarians who can't bring themselves to butcher an animal.
This comment makes no sense. Every judicial opinion, no matter which way it goes, is determinative.
What I'm proud of is that the Court has the cojones to stand up for principle in an era in which Congress certainly doesn't and the Bush Administration regularly violates it.
I'm all for rage against tyrants. But that's no part of political discourse (at least in the ordinary sense), that's part of revolutionary discourse.
So the majority is distinguishing crimes "against the state", whatever that means, from crimes "against an individual", so they can preserve the death penalty for treason.
The reason he mentions drug kingpins is because the slippery slope argument often string-cited all the federal death penalty statutes for non-murder offenses, and said they would all be called into question. The majority is saying, at the very least, "wait for another case", and I suspect they would uphold the death penalty for treason but might strike it down for drug trafficking (absent a death) if that case were presented.
Limiting Capital Punishment. — The bill reducing the cases in which the penalty of death shall be inflicted, which attracted much interest, was passed by both houses and became a law.
It does away with the death penalty in all cases except murder, rape, and treason; and in case of murder or rape the jury is authorized to qualify a verdict by adding "without capital punishment." In the report on the bill, its purpose is explained as follows:
The offenses to which the death penalty was affixed during the colonial times were adopted from the English code and re-enacted in the federal statutes after the adoption of the constitution. Few changes have been made during the last century. At this time there are sixty offenses for which federal laws prescribe the death penalty, positively or conditionally, as a military or naval court-martial may, in its discretion, direct. There have been no executions for many of these offenses for a long term of years. Their existence in the statutes gives a sanguinary character to our laws inconsistent with the spirit of the people and of the age. Your committee recognize the strength of the arguments presented by the advocates of the abolition of the death penalty, supported as they are by statistics and the satisfactory experience of states and countries in which partial or total abolition ha.s been tried; and several members of your committee are fully prepared to recommend the total abolition of the punishment of death. Hut others believe this penalty to be a great deterrent, and that the people are not, at this time, ready for total abolition; therefore your committee unanimously recommend that for the crimes specified in this bill the punishment of death be retained, with the limitations provided herein, and that for all other crimes for which this penalty is prescribed under existing laws this punishment be totally abolished."
Yes, of course, that is what they think.
As I have said repeatedly here, on many, many issues, the SC and the lower federal courts have totally abandoned the judicial function in favor of the policy making function. Both left and right.
They do it because they keep getting away with it. Sooner or later they will overstep.
As for the comment regarding Marbury v. Madison, I certainly advocate its demise but the chances are less than zero so why bother.
alkali wrote: "I'm not sure that this is true. I seem to recall that historical surveys have found that prior to the twentieth century, sexual assaults on children were often not regarded as very serious. (If someone can confirm either way please do.)"
It was considered serious on a federal level. In 1807 when Congress limited the use of the death penalty for many crimes, death for rape remained.
On further review, I strongly suspect you are thinking of An Act To Reduce The Cases In Which The Penalty Of Death May Be Inflicted, c. 29, 29 Stat. 487 (1897). (If I am wrong about this, please let me know.)
To be clear, I think it was always the case that rape of adults was treated as a serious crime. I seem to recall historians finding that sexual assaults on children were taken less seriously, perhaps because of a misguided believe that children were "innocent" and therefore wouldn't be seriously affected by such assaults. Again, any insight on this issue would be appreciated.
Could we maybe define rape as an act "intended to cause the death of a child"?
So we agree that the "crimes against the state" distinction isn't worth the paper it is printed on?
The fact they are saving it for another day doesn't say much about the reasoning of the argument itself.
Juries are asked to decide how the facts of the case fit with the law as presented to them by the court. They are not asked to evaluate whether or not they agree with the law. If Supreme Court justices are going to be interpreting a Jury's verdict as an endorsement of the law, this would bolster the argument that juries have the right to nullify laws that they don't agree with.
They do it because they keep getting away with it. Sooner or later they will overstep.
As for the comment regarding Marbury v. Madison, I certainly advocate its demise but the chances are less than zero so why bother.
I agree also. I would love to see Marbury abandoned. Barring that, I'd advocate wholescale repeal of much of the Judiciary that was promulgated by statute. I'd basically get rid of most federal courts entirely, including the district courts. They're far too dangerous. The less of them, the better. If that doesn't fix things, get rid of Article III and replace it with something else.
I'm not so sure that the people will react to a grevious overstep by the Court, though. The Court has overstepped, and is overstepping, all the time. Don't forget that approximately half the country is an advocate of increasing Court mastery over our democratic way of life, lest the holy-of-holies (abortion) be disrupted. People want their sacrifice to Moloch protected by the Elites, after all. But to decent people, the Supreme Court as an institution is wholly corrupt and is irredemably an enemy of society.
The fantasy that lawyering and arguing before the Court matters employs a lot of people, and makes a lot feel better about themselves. Don't underestimate this power of that illusion, either. People have been putting up with the Court's oversteps for years now, lest their world come tumbling down. But once you realize the implications of the sham, then a practicioner probably has to find a different line of work (like dealing with a regulator, instead of a judge).
Expect the Court to keep getting away with it for a long, long time. It'll last as long as the American Republic lasts, which might not be so long.
I'd like to point out the username of one of the most hysterical shriekers on the blog...
Read broadly, this would mean no more balancing tests in criminal procedure cases. It's about the rights of the accused, not societal interests. I doubt, however, that this thinking will show itself in other crim pro cases.
There is something extraordinarily Orwellian about Alito's opinion. "Hey, the Eight Amendment is about protecting the accused. So we need more reasons to kill you."
Or, in the immoral words of Judge Smails: "I've sentenced boys younger than you to the gas chamber. Didn't want to do it. I felt I owed it to them."
I don't read Alito's dissent as devastating at all. In fact, it's fairly inconsistent.
For example, he says: "It is the judgment of the Louisiana lawmakers and those in an increasing number of other states that these harms justify the death penalty."
I have to say, this is "simply not pertinent to the question whether the death penalty is 'cruel and unusual' punishment."
...if you assume that the Roper majority was being honest and wasn't just willing to say anything to support an opinion taking another bite out of the death penalty.
BS. The large portion of Kennedy's argument is based on the belief that what state lawmakers have to say about a practice IS "pertinent to the question whether the death penalty is cruel and unusual punishment". In fact, it was not only pertinent to Kennedy, it was determinative.
Why is that relevant to this decision? Doesn't this invite the question of why justice is not always better served by allowing the prisoner to be confined, etc?
You would think the only relevant issue is deciding whether the death penalty is cruel and unusual punishment for child rape. Evolving standards of decency must have some place in this judgment, right? Otherwise, how do we know what qualifies as "cruel and unusual", unless we want to embrace exactly and only the punishments that "most" people would have accepted at the nation's founding? I can't fault the Court for trying to determine this. However, shouldn't they stick to that, rather than bringing in extraneous considerations about which policies are more just? Isn't that the legislative branch's job? And I say this as a death-penalty opponent, I might add.