The National Consensus on Capital Punishment for Child Rape:
Andrew Hyman sends along the results from this interesting national Qunnipiac poll on various legal issues. Of particular interest, the poll asked the following question:
"The Supreme Court has recently ruled that a mandatory death penalty for child rape is unconstitutional. Do you favor or oppose the death penalty for persons convicted of child rape?"Here are the results:
Favor: 55 percentThis would seem to further undermine Justice Kennedy's claim in Kennedy v. Louisiana that there is a national consensus opposing the death penalty for child rape.
Oppose: 38 percent
DK/No Opinion: 7 percent
The poll also has interesting results on other issues, ranigng from gun control and gay marriage to abortion and Chief Justice John Roberts.
Related Posts (on one page):
- Question About Rehearing in Kennedy v. Louisiana:
- Tribe on Kennedy v. Louisiana:
- SG Seeks Kennedy Rehearing:
- Kennedy Petition for Reconsideration:
- The National Consensus on Capital Punishment for Child Rape:
Regarding the child-rape point, if the question was worded to state that the Supreme Court “ruled that a mandatory death penalty for child rape is unconstitutional,” that would be wrong, since Louisiana (nor any other state) has a mandatory death sentence for child rape. The question also does not make it clear that the class of offenders no longer eligible for the death penalty are only those that did not kill their victim. Subtle changes in the wording of questions on the death penalty often result in vastly different polling results. Given that, I don’t think this poll is a good data point to look at. Indeed, I think one of the reasons the Court should not look to polling data at all is because of polling’s well-known shortcomings when it comes to accurately gauging public support for complicated policy issues. Frankly, I think the Court should abandon its whole state-counting enterprise to begin with and just use its independent judgment to determine whether a particular death-penalty statute violates the Eighth Amendment.
I do find it interesting, though, that despite the inaccurate first sentence ("The Supreme Court has recently ruled that a mandatory death penalty for child rape is unconstitutional"), support for the death penalty for child rape crosses both party and gender lines.
My guess has always been that "national consensus" is code for "what we elites think is best for you peons."
Had the question been worded accurately, I bet even more people would have said they support the death penalty for child rape.
Meaningless question since virtually none of the respondents know CURRENT "gun control" laws or know what FUTURE laws have been proposed.
Ignorance + ignorance = guess.
What this question really tests is the public perception (created by selective media reporting) that criminals continue to use guns to facilitate their crimes. What it shows is that "If it bleeds, it leads," continues to be a good way to gain readership or viewership.
Not very. That's an essentially content-free statement, given that many people who are opposed to gay marriage support civil unions, which are themselves not necessarily gay devices and have been around in one form or another for a long time. "A large percentage of people support either the Democratic Party or the Republican Party." How interesting is that, Pookie?
It's an interesting question as to whether this is another sign of increased politicization, but it could also just be mostly an election year thing.
Given that the question was "Which would you prefer? Do you think same-sex couples should be allowed legally to marry, should be allowed legally to form civil unions but not marry, or should not be allowed to obtain legal recognition of their relationships?" I don't think you can say people weren't supporting gay civil unions.
Actually, it is interesting. Civil unions have been around for a long time and therefore are not a "gay device?" Well, my understanding is marriages have been around for a long time too and so are not gay devices. Fact is, when you modify either underlying concept--marriage or civil union--with the word "gay" you are creating a different kind of concept, and what people say about that does mean something. Your analogy misses the point--it would be a much closer analogy if you said "gay Republican Party" or "gay Democratic Party." Of course, that wouldn't support your point. Fact is, the increased support for gay civil union probably is increased support for same-sex relationships in some form or another.
If only 47% favor the death penalty for murder (when offered a choice between the death penalty and life w/o parole), what are the odds that the numbers are correct (55-38) when the issue is the death penalty or life w/o parole for child rape where the child is not killed? A mandatory death penalty is not even allowed for murder. Moreover, most people consider murder worse than rape, even rape of a child.
So I think the take away from this poll is that you can get fundamentally different numbers depending on how you ask the questions. My guess is that if the pollster asked whether "you" favor the death penalty for child rape where the child was not killed if the alternative was life w/o parole, they would not even find 40% of the public in favor.
Interesting that every group except Republicans favors 'B' over 'A,' despite a concerted effort to promote originalism by the GOP over the past 25+ years. Living constitutionalism is favored by 12 points overall over originalism, 13 points by independents and 20 points by women. Hell, even a third of Republicans favor 'B.' Granted, the question is not asked very well, but still, an interesting result in advance of a presidential election where SCOTUS nominations could become a major issue. Clearly, this is not a winning issue for McCain among the groups that he most needs to close the gap with Obama: women and independents.
If the Court is going to base its decisions in this area on "national consensus" then this poll seems as good as any other evidence.
But for the record, I don't think that conteporaneous consesnus is at all waht the framers of the Eighth Amendment had in mind when they wrote the word "unusual." The Eighth Amendment is almost word for word copied from the English Bill of Rights of 1689, which declared, "as their ancestors in like case have <i>usually</i> done...that excessive bail ought not to be required, nor excessive fines imposed, nor cruel and <i>unusual</i> punishments inflicted.” When they used the word "unusual" they were using it generationally and chronologically, rather than geographically. They were trying to stop the courts from inventing new and unprecedented punishments. Blackstone said the same thing about this provision of the English Bill of Rights, "which had a retrospect to some unprecedented proceedings in the court of king's bench, in the reign of king James the second."
So, the Court should indeed trash its state-counting, poll-watching approach to the Eighth Amendment. But that doesn't mena the Court should revert to using only its "independent judgment." Rather, the Court is supposed to consider whether the punishment is unusual given the history of previous generations.
Such a reading would clearly limit Lethal Injection as a novel, and therefore unusual, punishment.
Stick with the tried and true hanging....
Exactly. You can say the same about most of the other questions. Polls tell us practically nothing about whether a policy is sound or not.
I digress... More on point, there was a poll in 1997, discussed here at VC, that had 44% advocating the death penalty for criminals who sold drugs to children, and 17% favoring death for criminals selling drugs to adults.
The fact that a material portion of the US population holds such views (and therefore could make up the jury deciding your fate in a death penalty case) is enough by itself to call the death penalty cruel and unusual.
One of the oddest lines in Kennedy's opinion in Kennedy v. Louisiana was about drug kingpin activity: "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...."
Anyway, like I said, the Court may have broad discretion to use its independent judgment about what is "cruel", the same does not apply to determining what is "unusual."
For there to be a consensus against the child rape death penalty, a poll like this ought to show at least 80% opposing that penalty.
If it were up to me, I would say there isn't a "national consensus" unless opinion polls give fairly consistent results regardless of wording. But SCOTUS has rejected opinion polling as the standard. Did any of the parties suggest that they should change the test to an poll-based test?
Mandatory? Not from what I have read.
You mean criminals don't use guns to facilitate (or commit) their crimes? Who knew?
I'm against the death penalty as a matter of policy but that is the worst defense of Kennedy's O'Connor-esque argument I have seen.
And 'should be bar studying'..enjoy failing the bar. The fact that the citizens of this country endorse positions which you may find morally repugnant do not inherently make those positions cruel or unusual. And citing an AOL poll should be a polling godwin--as much as I love to know the collective opinion of 20k tech savvy americans' grandmothers, their polls are usually never scientific.
@Andrew
I'm curious..lets assume we know what's going on in Justice Kennedy's mind (and this goes double for the other 4 who voted w/him)---if he were forced to trash his (obviously not even consistent) state-counting, poll-watching approach and also continued to eschew the historicity of the amendment then what exactly would he be basing his 'independent judgment' on and how would he reconcile that with his (assuming he has one) judicial philosophy? (this is an honest question--not a snipe)
Lucky for me they never test the death penalty on the Bar anymore, essays or MBE. Thanks for the pep talk, though.
As to you specific question: if Justice Kennedy were to trash his state-counting, poll-watching approach and also continued to eschew the historicity of the amendment, then what exactly would he be basing his 'independent judgment' on and how would he reconcile that with his (assuming he has one) judicial philosophy?
Well, I suppose, he would consider whether the death penalty for child rape is pointlessly merciless to the criminal. He would stop speculating about whether it has cruel impacts on victims, or cruel impacts on his own tender sensitivities.
---Justice Marshall in Furman (1972) at 361
Justice Marshall was one of many judges who wanted to discount public opinion polls, but then he wanted to discount a lot of things. In Furman v. Georgia, Marshall's concurring opinion sought to discount the word "unusual" in the Eighth Amendment:
Ironically (or perhaps intentionally), Marshall wrote the words above immediately after writing the correct meaning of the word unusual: "there are punishments that are unusual, signifying that they were previously unknown as penalties for a given offense."
I’m not sure why you think I suddenly “realized” the ambiguous polling meant that it is likely that it understated the number of people in support of the death penalty for child rape. (Indeed, I was the first one to note why the number was likely understated!) So, you shouldn’t be surprised that my posts were the “worst defense of the Kennedy-O’Connor” position when I do not agree with their position.
The poll question in the original post is what matters.
Its leading to an incorrect conclusion /inference about what was recently decided.
How would a question like that play out in a real world
civil case?
Not well I imagine.
Good stuff.
To sum up, I do not think the Court should use polling or legislative enactments to determine whether a particular practice supports the death penalty. It doesn’t do this in other areas of the law, and I see no need to do it in the 8th Amendment context. But if it is going to do use this national consensus approach, it should not use polling, but just legislative enactments as (a) polling is often subject to manipulation via subtle changes in the questioning and (b) the public is “rationally ignorant” of lots [of] policy debates whereas this is less true of the legislatures.
I still question your (b). How, again, are "policy debates" supposed to bear on whether there's a consensus that a particular punishment is "cruel"? It seems to me that the more there exist reasonable prudential arguments against a particular punishment, the less basis you have to conclude from the (lack of) legislative enactments that there's a consensus that the punishment is excessively cruel.
Polls, at least potentially (this doesn't strike me as a very well-wrought question, to say the least), set aside the questions of fact-finding, expense, and the like and focus on what someone stipulated guilty of a crime actually deserves. If large majorities think that someone stipulated guilty of raping a child deserves to die, independent of prudential considerations, then it's hard to say that there's a "consensus" that putting him to death is "cruel." There might possibly be a sort of consensus, judging by the legislative record, that putting him to death would be boneheadedly stupid, but that's nothing to do with the Eighth Amendment, is it?
right. except when it leads to results people don't like, then they magically lose their support of it. The same leftwingers for example that support penumbras when it comes to abortion, all of a sudden become strict constructionists when it comes to the 4th amendment and terrorists.
I have simultaneously heard them argue that we keep eroding the constitution, specifically the 4th, 5th, 6th etc. THEN claim that a recent court decision limiting hearsay in DV cases was clearly an anti-woman thing.
There is one thing to me that is abundantly clear - most people don't want a living constitution OR a strict construction. They are just happy when the decision is in line with their policy preferences.
Another great example is Lawrence v. Texas. I have NO idea what the SCOTUS was thinking. I mean personally, I am totally against sodomy laws. But to argue there is some sort of hidden constitutional right to it is about as clear an example of a living constitution that I could imagine.
"usually never"?
The mind reels...
You may think originalists don't actually do this, and you're entitled to that view. Personally, I wouldn't characterize myself as an originalist. But don't set up a strawman, and a rather weak one at that (not sure I trust opinion polls to guide such an inquiry), and suggest that those supporting the view are some kind of cult group. If you ask the question the way you did, of course the answer will be what it was, because 90% of the people will have a misguided view of the philosophy. That isn't an acccident, because anyone asking that question was looking for the support they found. I'm just surprised the poll wasn't more skewed in favor of answer B.
This is probably off topic, but that framework would seem to allow for a number of decisions that self-identifying originalists constantly hammer against. The case that comes to mind (probably because I was thinking about it recently) is Lawrence v. Texas. Originalists point out, almost certainly correctly, that the framers didn't intend to protect sodomy as a constitutional right. But the general principles of the constitution, perhaps a freedom from government interference in purely private activities, would seem to very easily support Lawrence if interpreted in today's understanding of those principles.
I'm not a lawyer, and haven't read the decision in Lawrence v. Texas, but wouldn't the Ninth Amendment cover what sorts of sex consenting adults have in the privacy of their own homes?
Would the Supremes undo the "there's no consensus" ban or is there a ratchet?
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