In the Supreme Court’s decision on Wednesday in Kennedy v. Louisiana, holding that the death penalty is excessive for all rapes of children, I was surprised by the weakness of Justice Kennedy’s arguments about a “national consensus.”
If the American public has a “national consensus” about child rape, it is that the death penalty is appropriate and that the courts are too lenient in punishing first-time offenders. But that’s not the sort of national consensus that Justice Anthony Kennedy wants to follow.
Here are some of the questions I found in two post-1990 studies archived at the Roper Center:
JUNE 1997:
1. Do you favor the death penalty for someone convicted of each of the following? ...
A. Murdering an ordinary citizen
75% Favor
21 Oppose
4 Not sureB. Sexually molesting a child
65% Favor
31 Oppose
4 Not sureC. Rape
47% Favor
46 Oppose
7 Not sureSurvey by Time, Cable News Network. Methodology: Conducted by Yankelovich Partners, June 4-June 5, 1997 and based on telephone interviews with a national adult sample of 1,024.
AUGUST, 1991:
1. Do you favor or oppose the death penalty for people convicted of sexual abuse of a child?
47% Favor
45 Oppose
5 Depends (vol.)
4 Don't know2. Now some questions about people convicted of sex offenses such as rape, sexually abusing a child or incest.
Do you think people who are convicted the first time of sexually abusing children are given too harsh a punishment, too lenient a punishment or is it about right?
2% Too harsh
75 Too lenient
13 About right
10 Don't know3. When it comes to punishment, do you think sexually abusing a child should be treated as a more serious, equally serious, or less serious crime than raping an adult?
87% More serious
12 Equally serious
1 Less serious
1 Don't know4. (I'm going to read several pairs of different types of crimes. For each pair, please tell me which one you think is worse.)...
Rape of an adult or sexual abuse of a child...
2% Rape of an adult
90 Sexual assault of a child
7 Both equal (vol.)
1 Don't knowMethodology: Conducted by The Star Tribune, August 6-August 25, 1991 and based on telephone interviews with a national adult sample of 1,101.
Data provided by The Roper Center for Public Opinion Research, University of Connecticut.
Note that in 1997, 65% of Americans favored the death penalty for child molesters, an increase from 1991, before most of the public furor about molestation. If the question had been put in terms of “child rape,” support for the death penalty might have been even higher.
I do not think that the Supreme Court should be mostly following public opinion in determining what the Constitution means. After all, the Constitution was designed in part to protect individuals against the tyranny of the majority. And sometimes the public is too bloodthirsty (e.g., in 1997, 44% favored the death penalty for those who sell drugs to children and 17% favored death for the “victimless crime” of selling drugs to adults).
Yet the Court shouldn’t talk about following a “national consensus” on an issue on which in 1997 only 31% of the American public agreed with the Court and 65% of the public opposed the Court’s view. The justices should admit that they follow ELITE opinion, not the views and morality of the ordinary public. If they can't go that far, they should at least stop preaching to us about a “national consensus” that is little more than a fig leaf for their own (often quite reasonable) policy preferences.
Disclosure: As a policy matter, I oppose the death penalty on practical grounds (not on grounds of desert): it’s costly and probably fairly ineffective – and the possibility of false positives in some cases disturbs me.
What is the penalty for raping a Constitution?
I doubt either of those two scenarios would lead to false positive induced executions. Rather, I'm just cautioning that perhaps sex crimes are particularly prone to hysteria and more likely to more likely to involve "false positive" accusations.
The fact that 17% of potential jurors would apply death to a convicted drug offender (44% if they sold to an adult), in my mind, makes the application of the death penalty to any defendant, for any crime, cruel and unusual. If a large chunk of jurors lacks any sense of proportionality, how could it not be cruel or unusual.
Yet again, I'd point out, with sex, emotions often run wild. I remember seeing in a movie, probably 20 year ago -- I think it was "Salem's Lot" -- a scenario where a wife was caught in bed by her husband having an adulterous affair with a man. Her reaction was "he's raping me." The husband gets his gun out and starts shooting; but the guy doesn't die.
And then recently I saw a news story with this very scenario. But the innocent (well, innocent of rape, guilty of adultery) man was killed by the husband who thought he was raping his wife.
In other words--I'm not saying that the national consensus doesen't exist (I haven't seen data to say otherwise either0, but I'm shaky about the support for it. As a side note, I haven't read the opinion yet, so I don't know about Kennedy's reasoning.
Also, fwiw, both McCain and Obama actually agreed that this was the wrong decision today. When the two main presidential candidates agree and a mjority of the public agrees, I'd say that qualifies as a national consensus.
It's interesting that Obama spoke of how he wants Justices with empathy who will speak for the voiceless and downtrodden and then proceeded to name Souter and Ginsburg as his examples. They really spoke up today.
Meanwhile, it was the conservatives he denigrated and voted against in Roberts and Alito who he conceded had the better approach.
That is a whole other matter, altogether, if my wife or daughter was involved. I'm not prepared to suggest a universal rule based on the particular emotions I would feel at that time. Suppose I was caught having sex with someone's daughter and was accused of, or assumed to have committed rape. I would posit a very different universal rule then.
I mean, how many rape convictions come down to the issue of consent, with the jury deciding based on the testimony of one party against the other, with no other witnesses? Anyone that has had sex more than zero times knows how nebulous consent is. Throw that in with the fact that the jury has to ultimately pick one story over the other. Throw on top of that the fact that false accusations of rape have been found to run anywhere from 10% to 40%.
Obviously, there are plenty of rape cases that involve none of these close issues. And the close calls are highly unlikely to come close to invoking the death penalty. Nevertheless, the public, at a rate of 47%, would favor the death penalty for a rape conviction, with no qualification.
This scenario has nothing at all to do with state imposition of the death penalty, which occurs after-the-fact when preventing harm to one's loved ones is no longer possible.
I'd shoot to kill if I thought it necessary to defend myself or my loved ones from serious harm. But I oppose the death penalty in all circumstances on both moral and practical grounds.
It seems to me that it's not totally unreasonable to segment the 'public' for purposes of ascertaining 'consensus.' An opinion poll taken in 1491 about the shape of the earth may have been overwhelmingly different from elite opinion -- the Greeks had determined shape and size nearly 2000 years earlier -- and while it may well be that one shouldn't pretend that following elite opinion rather than mass opinion on this is 'national consensus,' it's no less incorrect to say that someone who adopts the elite opinion is simple substituting his or her own policy preference.
I this context, the critical question has to do with the definition of elite. If it's simply a synonym for aristocracy, then it's easy enough to deride. If, on the other hand, we're talking about people who've taken the time to study an issue, then it's something else altogether.
Another example: A non-trivial number of people in the US think the earth was created less than 10,000 years ago. A further non-trivial number have no idea whether the right answer is a million, a hundred million, or a hundred billion. One would nonetheless be perfectly correct to say that there is a national consensus that the earth if about 5 billion years old, give or take (I'm not qualified to be counted as one of the people who's opinion would be taken into account on this, so I apologize in advance if I'm way off on the number). And that's not 'substituting one's policy preferences.'
I'll again disclaim opinion on whether and what the consensus is about the DP. It's not a simple question, is all.
I wish the survey would go on to ask what people think the typical punishment is.
Whether people think the justice system is too lenient is interesting on one level, but I don't think it gives any information on the popularity of the actual punishments imposed.
Er, I agree with the concerns about cost, and can understand although do not agree with the concerns of effectiveness, but what in particular is supposed to be more disturbing about simply killing a falsely convicted child molester?
By the time the actual punishment is doled out, we're talking the better part of a decade or longer. Aggravated child molesters do not exactly have a great record of long-term survival inside the normal prison populace at that point, and those who do have been treated rather unpleasantly.
Even if, say, the falsely convicted child molester was found to be not guilty the day after his potential execution, that still doesn't seem much better. That doesn't strike me as overwhelmingly likely, though -- evidence that's been lingering for a decade isn't particularly inclined to pop up for irony's sake.
That leaves the question of how bad death is. I'm not convinced that it's worse than a decade of being a child molester in prison; I'm certain it's not worse than decade[b]s[/b] of being a child molester in prison.
CharleyCarp :
That would be a relevant comparison if the matter was decided by actual facts. That's not the case under the decisions made by the SCOTUS on this matter today; SCOTUS defined what was and what was not acceptable as what the opinions of society as a whole are. There are no real 'facts' available on the matter of whether something is or is not morally correct, cruel, or unusual.
If you asked the majority of the populace whether caviar or chocolate tasted better, you'd get a different response than if you asked the rich. Unless there's a citable distinction as to who is 'more correct', neither is. Previous cases on this matter have made it clear that the matter was that of the general public, not the rich or the elites or the local people.
No one wants to really confront the issues because "getting tougher" on child sexual abusers is good politics.
I did not mean to assert that there are 'massive numbers' of prison homicides involving pedophiles as victims, only that the odds are significantly greater than the average prison inmate.
As a separate matter, I applaud the court's decision. I believe that in interpreting the 8th Amendment, the words "cruel" and "unusual" should be understood not only in terms of all punishments, but also in relation to the crime. A year in jail may be neither cruel nor unusual punishment for robbing a bank, but it would be both cruel and unusual for shoplifting a pack of chewing gum. Statutory rape of children happens every day, but in thirteen years that the law has been on the books of Louisiana, this punishment has never been carried out. Ipso facto, it is unusual, most likely in part because it is recognized as being cruelly disproportionate to the crime.
I know persons who were repeatedly molested as children, and not one of them thinks the perpetrator deserves death.
you seem to not get the difference between a punishment and a sentence. The 8th amendment doesn't say nor shall cruel and unusual sentences be passed. sentence and punishment are two distinct concepts/
it only applies to the punishment itself in my view. to the inflictor, in this case the state administering the execution. it doesn't apply to legislatures setting up sentences and juries deciding on them. for that we must rely on the electoral oricess, the constitution doesn;t speak to it.
I happen to think in most jurisdictions a year in jail for shoplifting a pack of wrigley's wouldn't be passed, and if it was, I'd either make sure I paid the 30 cents or I'd move somewhere else.
the 8th amendment only proscribes punishments themselves, such as being drawnm and quartered or fed into a tank pf pirhanas or being put on the rack, stuff like that.
modern and humane lethal injection can never be cruel and unusual punishment.
That simplifies things. We can just let the victims be the sentencing authority in criminal trials.
As a matter of policy, you are right. The death penalty is a giant resource suck. One the death penalty is on the table, money starts flying at a case, more to the prosecution than to the defense. Courts at all levels give the case far more attention. The defendants also file a lot more challenges to their conviction and sentence.
By contrast, when a defendant gets life, they get one trial with one lawyer and one appeal. If they lost at trial and appeal, their case is usually over forever.
Fiscal conservatives should be strongly opposed to the death penalty. You can prosecute and lock away a lot of child molesters for life for the same cost as killing just one.
What I believe is that the 1997 study suggests that there is not a national consensus AGAINST the death penalty for child rapists and that "IF --[and I mean IF] -- the American public has a “national consensus” about child rape," it would be in the opposite direction.
This is another reason why the current Supreme Court's method of polling the laws of the 50 states is fundamentally flawed. There may be many reasons why a State would not have the death penalty or would not have it for a particular crime (child rape). The legislators might feel that the death penalty is "cruel and unusual." Or, they might feel that, given the current death penalty jurisprudence, it is simply not worth the time and effort to pursue the death penalty when it could take 20 years and many resources and one might still not get it to stick.
New Jersey, my home state, is a perfect example. We recently abolished the death penalty. Many in the State felt that while we supported the death penalty in theory -- i.e. it is the just deserts of 1st degree murder -- as a practical matter the NJ Supreme Court has made clear that it will never allow a death sentence to be carried out. Every procedural problem is trotted out and anything less than a perfect trial is the basis for a reversal. The practical reality is that a capital case means 20 to 30 years of litigation with almost no chance of actually carrying out the sentence.
It would be misleading to count NJ's abolition of the death penalty as part of an "emerging" national consensus about the morality or cruelty of the death penalty. But one can bet that in some case down the road it will be cited for just that purpose.
I agree, because the fundamental problem is epistemological: If there in fact IS a change in public perceptions over time, how can the SCOTUS Justices KNOW what this consensus IS? (Souter has never even read the newspapers.) Are they going to commission polls, and then go by the average of the results?
This is the problem at the core of judicial "progressivism." I don't disagree with the results: I am opposed to the death penalty. Period. But the process disturbs me. Assertion by the Supremes of a changed "standard" will generally be an assertion of a sociological "fact" that the justices cannot possibly KNOW.
Are you suggesting that the crime before the court was merely statutory rape (i.e., sex with a minor)? If so, I suggest you read the facts of the case. This was a brutal, violent rape that required the victim to undergo emergency surgery. There is no punishment that is cruelly disproportionate to what this guy did.
Another excellent example of this was presented by Jeff Jacoby in a Boston Globe op/ed
A phony 'consensus' on youthful killers
Certainly the evidence since then has been pretty loud and clear. When Barack Obama, one of the most liberal candidates for public office in years, is willing to come out against the decision, you know have officially left the reservation.
But if you were interested in doing something more like what judges are supposed to do, there is a much simpler approach to all of this. Reason from the laws. For instance the constitution specificaly allows for the death penalty for treason. Now you have to think that when they wrote that clause there was one name on their mind: Benedict Arnold. You have to assume that was their paradigm. Now I am a good patriot and thus Arnold's name is still mud to me, but i challenge any person interested in real legal reasoning to make the case that Arnold was a more depraved man than the defendant in Kennedy v. LA. Sorry to gross you out, but the man raped his own 8 year old daughter so hard that he ruptured the wall between her vagina and anus. I don't want to say she is "ruined for life" because I don't want to be that pessimistic about the ability of the human spirit to overcome adversity, but she has a long road ahead for sure. Can anyone really say that the defendant is not at least as deserving of death as Benedict Arnold?
As a fiscal conservative, I agree that the way it is carried out now is wasteful of resources, but to me, the solution is not to get rid of it entirely, but simply get rid of all the procedural nonsense and make sure death sentences are carried out quickly.
And I also dispute your conclusion that the 5-figure-per-year amount it costs to incarcerate somebody, times the number of years they will live, is less than (by several factors, according to you) even the current, inefficient execution process. But like I said, the process is still inefficient as it is.
> Fiscal conservatives should be strongly opposed to the death penalty. You can prosecute and lock away a lot of child molesters for life for the same cost as killing just one.
My God that is disingenuous. It is because of libs like you that it is expensive. All you have really made is an argument agaisnt all this extra attention and procedure.
You could almost make a mastercard commercial on execution. Cost of the prosecutor's salary: $50,000 a year. Cost of public defender: $30,000. Cost of court resources including appeals: $300,000. Knowing the sonofabitch will never harm another child again: priceless.
But I do like the proposal of one man whose daughter was raped and who was infuriated with this decision. just pass a law declaring that these animals will be mixed in with the general prison population: in other words, the death penalty de facto, rather than de jure. Its a bit extreme. I would have preferred a lethal injection, but knowing these bastards will be dead? yeah, priceless.
You don't know that. You only know what answer 47% of 1024 people said on the phone. Note that a reported 5% weasled out of the multiple choice to say it "depends". Without better questions you can only say that 52% of the sample favor the death penalty in some cases of rape.
As Conservatives, we think with our brains, not our hearts. And our brains tell us that if someone wants revenge for their child, the state should give it to them. That's Justice.
Of course, this is all irrelevant as the only standard is the Stone Cold Steve Austin Rule. "That's the bottom line--Because Stone Cold/Justice Kennedy says so."
Even assuming, contrary to much of the literature, that there is a "National Consensus" that capital punishment should not be used under these circumstances, what would the Court do if faced with a similar case and the "National Consensus" has shifted the other direction, perhaps to the extent that pitchfork and torch wielding citizenry appeared on the courthouse steps to make its sentiments known to the Court?
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