5-4 Supreme Court Bars Death Penalty For Child Rape
Raping A Child Not Really As Bad As Democracy
By Dan McLaughlin Posted in Justice Kennedy | Law — Comments (93) / Email this page » / Leave a comment »
The Supreme Court today, in Kennedy v. Louisiana, found that the Eighth Amendment bars the death sentence of a man who brutally raped his 8-year-old stepdaughter, causing traumatic physical injury (decency doesn't permit quoting here the Court's discussion of the facts on p. 2 of its opinion), to say nothing of the emotional trauma. The decision was 5-4, with Justice Kennedy writing the opinion joined by the Court's liberal bloc. The decision is significant in three major main ways:
1. It essentially bars the death penalty in all cases that do not result in the death of the victim, with the exception of "offenses against the State."
2. It explicitly confirms that the Court's reliance on an 'evolving national consensus' against the death penalty in specified circumstances is truly a one-way street; the Court frankly admits that unless there is strong evidence of a national consensus favoring the death penalty for a particular crime at a particular time, the Court will permanently bar every state from using the democratic process to impose such a penalty at any time in the future.
3. It rejects the notion that state legislatures are competent to come up with any sort of safeguards, a conclusion much in line with the Court's recent view that Congress is incapable of determining procedures for the handling of alleged enemy combatants. The assertion of judicial supremacy inherent in this conclusion is staggering.
Read On...
1. No Death Penalty For Non-Homicide Crimes
Justice Kennedy's opinion began with a decidedly ahistorical reading of the Eighth Amendment, a document written at a time when basically all felonies were punishable by death:
[P]unishment is justified under one or more of three principal rationales: rehabilitation, deterrence, and retribution....It is the last of these, retribution, that most often can contradict the law's own ends. This is of particular concern when the Court interprets the meaning of the Eighth Amendment in capital cases. When the law punishes by death, it risks its own sudden descent into brutality, transgressing the constitutional commitment to decency and restraint.
Applying this view of the death penalty's permissible scope, the Court concluded that the rape of a child just isn't bad enough to justify an execution:
It must be acknowledged that there are moral grounds to question a rule barring capital punishment for a crime against an individual that did not result in death. These facts illustrate the point. Here the victim's fright, the sense of betrayal, and the nature of her injuries caused more prolonged physical and mental suffering than, say, a sudden killing by an unseen assassin. The attack was not just on her but on her childhood. For this reason, we should be most reluctant to rely upon the language of the plurality in Coker, which posited that, for the victim of rape, "life may not be nearly so happy as it was" but it is not beyond repair. ... Rape has a permanent psychological, emotional, and sometimes physical impact on the child. ...We cannot dismiss the years of long anguish that must be endured by the victim of child rape. It does not follow, though, that capital punishment is a proportionate penalty for the crime. The constitutional prohibition against excessive or cruel and unusual punishments mandates that the State’s power to punish "be exercised within the limits of civilized standards."
Note that the Court offers no further explanation of why the death penalty is disproportionate to such a horrible crime. The Court's expressed concern for the awfulness of child rape is just so much window-dressing, to be given no real analytical weight against the ipse dixit of the present state of five 'consciences':
Consistent with evolving standards of decency and the teachings of our precedents we conclude that, in determining whether the death penalty is excessive, there is a distinction between intentional first-degree murder on the one hand and nonhomicide crimes against individual persons, even including child rape, on the other. The latter crimes may be devastating in their harm, as here, but "in terms of moral depravity and of the injury to the person and to the public," ...they cannot be compared to murder in their "severity and irrevocability."
+++
Evolving standards of decency that mark the progress of a maturing society counsel us to be most hesitant before interpreting the Eighth Amendment to allow the extension of the death penalty, a hesitation that has special force where no life was taken in the commission of the crime. It is an established principle that decency, in its essence, presumes respect for the individual and thus moderation or restraint in the application of capital punishment.
The Court left for another day, however, the death penalty as applied to crimes that extend beyond individual victims:
We do not address, for example, crimes defining and punishing treason, espionage, terrorism, and drug kingpin activity, which are offenses against the State.
Now, personally, I have a good deal of sympathy with the idea that, for a variety of reasons, the death penalty is best employed against these sorts of crimes. But it's revealingly statist as well as inhumanly insensitive and legally nonsensical to impose a rule of Constitutional dimension that says that dealing drugs is worse than raping a child.
2. Democracy Stops Here
The real challenge in Kennedy, as I have noted for some time, is that unlike prior decisions that restricted the use of the death penalty against the mentally retarded or underage offenders based on an alleged 'evolving national consensus,' - a position that, in flagrant violation of Article V's express provision for how a specific number of state legislatures may change the meaning of the Constitution through the amendment process - in this case, the trend, however modest, has been for states to add the death penalty for crimes like child rape.
The Court examined the evidence of such movement and found it - like so many things in the democratic process - fitful and inconclusive:
The evidence of a national consensus with respect to the death penalty for child rapists, as with respect to juveniles, mentally retarded offenders, and vicarious felony murderers, shows divided opinion but, on balance, an opinion against it. Thirty-seven jurisdictions—36 States plus the Federal Government—have the death penalty. As mentioned above, only six of those jurisdictions authorize the death penalty for rape of a child. Though our review of national consensus is not confined to tallying the number of States with applicable death penalty legislation, it is of significance that, in 45 jurisdictions, petitioner could not be executed for child rape of any kind. That number surpasses the 30 States in Atkins and Roper and the 42 States in Enmund that prohibited the death penalty under the circumstances those cases considered.
In general, this sort of nose-counting is precisely the stuff of the democratic process and no business of the judiciary. But the Court determines that there are simply not enough states to stand in its way:
Respondent insists that the six States where child rape is a capital offense, along with the States that have proposed but not yet enacted applicable death penalty legislation, reflect a consistent direction of change in support of the death penalty for child rape. Consistent change might counterbalance an otherwise weak demonstration of consensus. .... But whatever the significance of consistent change where it is cited to show emerging support for expanding the scope of the death penalty, no showing of consistent change has been made in this case.
How does the Court respond to the lack of a consensus? By finding that a consensus to the contrary must exist!
After reviewing the authorities informed by contemporary norms, including the history of the death penalty for this and other nonhomicide crimes, current state statutes and new enactments, and the number of executions since 1964, we conclude there is a national consensus against capital punishment for the crime of child rape.
Well, as long as five Justices count the votes, what are you going to do about it? The majority expressly rejects the idea that the messy business of finding consensuses should be left to the representatives of the people whose "consensus" is being announced, and instead announces a default presumption against the death penalty wherever a clear national consensus does not exist in its favor, regardless of the consensus within individual states:
[The difficulty of determining the direction of the states] has led some Members of the Court to say we should cease efforts to resolve the tension and simply allow legislatures, prosecutors, courts, and juries greater latitude. ...Our response to this case law, which is still in search of a unifying principle, has been to insist upon confining the instances in which capital punishment may be imposed.
Note that the lack of "a unifying principle" does not restrain the Court from reaching a conclusion that is both categorical and intended to be a permanent restraint on further evolution of the People's consensus:
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. 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."... 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.
The reference to "full progress and mature judgment" is a particularly ominous one for fans of popular self-government and limitation of the Court's powers to those enumerated by prior agreement of We the People.
Ironically, the Court also bats away the suggestion that some states may have feared to enact the death penalty due to suggestions in prior decisions that it could be struck down:
[R]espondent contends, it is possible that state legislatures have understood Coker to state a broad rule that covers the situation of the minor victim as well. We see little evidence of this. Respondent cites no reliable data to indicate that state legislatures have read Coker to bar capital punishment for child rape and, for this reason, have been deterred from passing applicable death penalty legislation. In the absence of evidence from those States where legislation has been proposed but not enacted we refuse to speculate about the motivations and concerns of particular state legislators.
Note that the Court is comfortable finding a consensus of the people, but not discerning the intentions of legislatures.
The position of the state courts, furthermore, to which state legislators look for guidance on these matters, indicates that Coker has not blocked the emergence of legislative consensus.
+++
We conclude on the basis of this review that there is no clear indication that state legislatures have misinterpreted Coker to hold that the death penalty for child rape is unconstitutional. The small number of States that have enacted this penalty, then, is relevant to determining whether there is a consensus against capital punishment for this crime.
3. Never Trust The Legislature
The final piece of the Court's holding that I'll deal with only briefly here is its concern that the death penalty could not be applied with sufficient safeguards to child rape, given the relative (national) rarity of its application:
Evolving standards of decency are difficult to reconcile with a regime that seeks to expand the death penalty to an area where standards to confine its use are indefinite and obscure.
Once again, the Court simply does not trust legislatures, unlike courts, to deliberate and develop rules and standards. But those state legislatures simply do not have five votes.
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5-4 Supreme Court Bars Death Penalty For Child Rape 93 Comments (0 topical, 93 editorial, 0 hidden) Post a comment »
In his opinion, Justice Kennedy says that the reason for ending the death penalty for child rape is to protect the victim, as he fears that if a child rapist knows he's facing the death penalty, he will then kill his victim as well.
If anything, Kennedy, in stretching for logic that would suit him, may have just watered down the pragmatic argument against the death penalty, leaving anti-capital punishment advocates with only the Eighth Amendment option to go on.
Allow me to explain.
The pragmatist's opposition argument to the death penalty is that it doesn't serve as a deterrent of crime, so it is, in the long run, not worth pursuing as a remedial action of the justice system. However, Justice Kennedy's logic effectively assumes that a child rapist is cognizant of their potential to face the death penalty.
Needless to say, if somebody committing the act is aware of the punishment and needs to take steps to avoid it (i.e. killing the victim so they can't testify against them), then it also follows that others avoid the punishment simply by not committing the crime in the first place...
"Once within the maw of Leviathan, degree of digestion is irrelevant." - Michael Fisk
"In his opinion, Justice Kennedy says that the reason for ending the death penalty for child rape is to protect the victim, as he fears that if a child rapist knows he's facing the death penalty, he will then kill his victim as well."
The libs argument against concealed carry is that the bad guys will just start shooting all the good guys since they don't know who is armed. It didn't quite work out that way from what I've read. Seems like the same sort of argument here.
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Obama's guiding principle: "I reserve the right to revise and extend my remarks."
than being raped. If myself or anyone close to me were a victim of such a disgusting crime, the rapist would be wishing for a nice little needle. No one deserves death more than a rapist, especially a child rapist.
I am so SICK of criminals being treated like victims!
I am so SICK of this illogic "logic" system used today!
MelZ
What would the objection be to 'an eye for an eye'? The ruling makes perfect sense in restricting the government's ability to take a life, to the person having taken a life. It just seems natural to equate the judgment to the crime. No matter how heinous the rape of a child is, it is not taking a life. The state could impose mandatory life sentence, but not the taking of a life. At what stage do we draw the line if the court had ruled the other way? If raping a child was a capital offense, then couldn't raping an adult be one? Couldn't it reach the slippery slope in that direction?
I do take umbrage to the concept of anything 'evolving' that completely wipes out the purpose of a Constitution, which by its very meaning implies evolution cannot take place without the Constitution being changed first, by an act of congress and ratification by the states.
If McCain goes after this he needs to stay away from the 'eye for an eye' issue and jump on the 'evolving' issue.
THAT is up to legislatures, NOT the stinking High Court of Satan. It is not up to the court to apply 'evolving standards', to reason about how applying the death penalty means that now child rapists will be more likely to murder their victims, and so on.
It is their jurisdiction SOLELY to apply the United States Constitution, and the 'cruel and unusual punishment' clause as they determined the Founding Fathers meant it.
And I think it is a thin argument indeed.
Impeach the 5 usurpers
Knowing da*n well that someone who is a rapist already doesn't give a rat's *** about the laws. People who rape children are the foulest people in the world, and there is a very special place in the darkest hottest part of Hell just for them. Kennedy just handed them a victory. Now I know how mad conservatives were the when Roe happened. This is beyond infuriating-this is despicable. Kennedy needs to be impeached and thrown out of office on his liberal ***.
“To insist on strength is not war-mongering. It is peace-mongering.”-Barry Goldwater
Kill the terrorists.
End the NewTone.
Punch the Hippies.
in that direction?
Bear in mind that rape (adult) used to be a capital crime in some states, The supremes defanged the remaining states I believe in 1977.
Regards
Please by all means, now show me how this is better than another Ginsburg on the Court? This is the biggest abomination of a decision that I have ever seen from the pathetic group of left-wing zealots draped in flowing sanctimony, to quote Justice Thomas, the finest member of the Court. This is pathetic from the viewpoint of state's rights, and this is pathetic from the idiocy that capital punishment is going to make a rapist murder as well. Because we all know that people don't murder when they live in a state where they can get the death penalty. The victory today goes to pedophiles and child rapist. Kennedy you are a monster.
“To insist on strength is not war-mongering. It is peace-mongering.”-Barry Goldwater
Kill the terrorists.
End the NewTone.
Punch the Hippies.
Kennedy has been more flamboyantly obtuse in the recent two cases than just about ever before. Do you think he might be doing this in part because he knows a retirement might be in the offing?
For the first time since the 1930s, there are four absolutely solid conservatives on the bench. None of these gentleman are likely to retire in the next five years. In contrast, Stevens, Souter, and Ginsburg ALL might retire in the next five years. And if any one of the three retires this year (admittedly unlikely though not impossible), King Tony's reign might be at an end. For if Bush chooses carefully, the Dems might be hard pressed to stall a vote until 2009. And that might make for five solid conservatives and Kennedy's relegation as a force on the Court.
Putting yourself in the shoes of an egomaniacal lightweight like Kennedy, if you believed one of the three was about to retire, might not you try to leave your mark while you still had a chance? That's an optimist's fantasy anyway. :)
think again. Even if McCain is elected, the odds of a GOP-controlled Senate are somewhere between zero and nil. This means that McCain will undoubtedly be forced to nominate marginally conservative SCOTUS candidates, AT BEST. There is no way that a Roberts/Alito/Scalia style nominee would clear the Judiciary Committee, much less get confirmed. So his promises on nominee type are somewhat irrelevant at this point.
Net: right now we're probably seeing the best we're gonna see for a long, long time. The best we can even hope for is that the ultra-left justices (JP Stevens) get replaced with others who are in the mold of Anthony Kennedy. Not a horrible prospect, but probably not what most conservatives are pining for.
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I am anticipating he will be all over the news criticizing this decision. Unlike the California homosexual marriage decision where he was yukking it up with ellen degenerate the week afterwards.
You are correct the Senate Democrat Judiciary committee will fight President McCain tooth and nail if/when he nominates a Roberts or Alito or Scalia. But that's where we want our President to FIGHT!, if they shoot down Roberts, send them Alito, if they shoot down Alito, send them Scalia, and round and round. NEVER AGAIN do we take the word of a damn Warren Rudman and send an unknown obscure homosexual state supreme court judge like Souter.
As for what is Ginsburg being worse than Souter, I would analogize the 2 as Ginsburg being someone else shooting you in the head, Souter being shooting yourself in the head. What's really worse?
Just awful, but I seriously hope the candidates will both be asked about this today, as we know Obama would be against the death penalty for child rapists and I would assume McCain for. How can anyone support the courts decision??? Maybe this can be the point all realize how horrificly left Obama is.
Just awful, but I seriously hope the candidates will both be asked about this today, as we know Obama would be against the death penalty for child rapists and I would assume McCain for. How can anyone support the courts decision??? Maybe this can be the point all realize how horrificly left Obama is.
... or are there strong parallels between this case and Boumediene?
I can't help but think that there is a bait-and-switch aspect to the court's "evolving national consensus" standard; that is, they're just kidding about it.
Similarly with the judicial supremacy: in both cases, the Supremes felt perfectly fine making what is, in the end, policy decisions, that rightfully are for the legislature to make.
Appalling.
As someone who was molested as a child, my ACTUAL opinion on this matter cannot be printed here.
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Dependence is Slavery.
And I cannot over-emphasize how deeply it has affected her as an adult. While operating with a pretty normal facade, she was massively troubled and disturbed, had bouts of depression, and it goes without saying, she had issues with trusting men.
And she never would tell me the name of the man or how to find him, and at some point I quit asking. Because I had every intention of tracking him down and executing vigilante justice.
LK, I share your feelings toward the supremes, although probably less intensely than you.
Impeach the 5 usurpers
All I'll say is that it is amazing how such an act horridly skews your views of other people (humanity as a whole), trust, even security.
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Dependence is Slavery.
as a little girl, younger than the one in this horrible situation. Lethal injection is too merciful for the damage that these depraved people inflict on innocents whose lives will never be the same. The entire arc of their lives is interrupted by this savagery and it never goes back.
I have no adequate words to express the disgust that I feel at this moment.
molestation of a child kills the spirit of the child. They are forever changed and they are forced into a state of mind that they are not prepared for.
This alters them forever. (This is often why molested children tend to be very withdrawn and quiet)
Anyway. yeah.
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Dependence is Slavery.
Yet somehow not surprising. This SCOTUS is breathtaking in its depravity lately. This ruling truly is depraved.
I've always thought child rapists should get the death penalty. Then again, I also think they should be handed to an outraged mob and given a good, old-fashioned Biblical retribution.
I can see the political mailings being printed right now. Wouldn't a lot of us donate more if we got these reminders every day? Sooner or later a sleeping tiger in the American public will have had enough and will roar!
You may not be interested in war, but war is interested in you.
a pretty decent substitute for the death penalty? My understanding is that child molesters aren't treated so well by other cons in prison. It may not take long for the imprisoned child rapist to WISH he had received the death penalty. And that might be better justice than killing him outright. Since we can't torture, maybe we should just let their fellow criminals do it instead.
The Unofficial RedState FAQ
“You are not only responsible for what you say, but also for what you do not say. ” - Martin Luther
My father is a corrections officer, and he says that there are occasions when, even at the minimum security facility that he's at, they have to take special measures to keep the general inmate population from going vigilante on child molesters.
When crackheads and gang bangers look down on them... that's saying something.
"Once within the maw of Leviathan, degree of digestion is irrelevant." - Michael Fisk
Carl Chessman, the famous "red light rapist" from California, was convicted in 1948 for forcible rape and sentenced to die. All he did was to rape women in their cars at red lights and let them go. He never killed any of these women. Yet he served 12 years on death row, had eight stays of execution, and was finally given the gas chamber in 1960. As a child growing up I remember this case well. It was a very publicized case.
The SCOTUS back then did what the court is expected to do. It let the state of California determine the punishment for the crime committed under its jurisdiction, and did not try to impose its own Imperial Judiciary ruling which would have effectively replaced the laws written by the California representatives.
The SCOTUS has no business deciding such momentous issues that should be left to the states. They found a right to privacy that is not in the Constitution. Now they have found a right to rape that essentially separates that crime from other capital crimes. Truly unbelievable!
As a parent, this isn't just a bad decision. This is an outright betrayal of the Court to protect the citizens. Instead, they brought their left wing agenda and decided that it was more important to protect these monsters rather than protect the children. Perhaps we can just put this child rapists in kennedy's house, since he thinks killing these monsters is cruel and unusual. This is a sad day for America.
“To insist on strength is not war-mongering. It is peace-mongering.”-Barry Goldwater
Kill the terrorists.
End the NewTone.
Punch the Hippies.
Perhaps we can just put this child rapists in kennedy's house
I get the sentiment, but really, let's not go there, even as a rhetorical flourish.
"No compromise with the main purpose, no peace till victory, no pact with unrepentant wrong." - Winston Churchill
Sen. Obama, if, God forbid, one of your daughters was brutally raped, would you support the death penalty for her attacker?
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Damn the Obama! Full speed ahead!
with Justice Kennedy? ...Likes the spotlight? Loves the swing vote?
Anyway, if State legislatures and society keep losing the right to apply the peoples view of proportionate punishment for crimes. I predict Charles Bronson type groups will pop up with great support.
Can't wait for ONE more big Court ruling to come very soon.
I hope Justice Kennedy wakes up, he has me very concerned.
Is the nomination and confirmation of center-right - even Conservative - justices the only answer to stopping this usurpation of power?
Doesn't this decision violate the 10th amendment? What would happen if Louisiana went forward with the execution?
Would never happen, but that would be so very sweet if Louisiana just went ahead and executed the dirtbag. The only better would be to send this Kennedy over to Justice Kennedy's grandchildren to babysit.
We deserve better from out Supreme Court.
a "national consensus against the death penalty"?
Based on the number of states that have banned capital punishment for child rape.
Something bad will have to happen to one of the grandkids of the 5 justices who struck down the will of the people of Louisiana before they will realize how wrong child rape truly is.
Proudly supporting John S. McCain for President (McCain/Romney?)
If the SC REALLY cared about a 'national consensus' on the death penalty, they'd have let the states put it up to a vote.
Instead, they inserted their will as to what the 'national consensus' OUGHT to be.
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Dependence is Slavery.
Bad logic. Good result. The death penalty is immoral.
But a Clarence Thomas once said. If the state of Texas wants to make a bad law, that is their right.
NOT having a death penalty is what is immoral and barbaric.
Letting a vile murderer live on while the victim's family gets no closure, and society gains no retribution, but rather must continue to pay for his food and shelter, that is immoral.
Letting him hang around to endanger others, even in a prison, that is barbaric.
"Nothing works like freedom, Nothing succeeds like liberty"
Kyle
Gotta agree with Kyle.
To NOT execute criminals for having committed mass murder or radically violent murder or other crimes deemed "Death Penalty Worthy" shows that a criminal has more rights, more protection and more value than the victim.
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Dependence is Slavery.
Bad logic. Good result. The death penalty is immoral.
But as Clarence Thomas once said. If the state of Texas wants to make a bad law, that is their right.
Sticking a fork into a baby's head and sucking out the brains with a vacuum filled with razors is okay, but mercifully putting a child rapist to sleep is wrong?
FISA is unconstitutional but the Fairness Doctrine is okay?
McCain hanging out with a cute lobbyist is bad, but befriending and receiving support from terrorists is okay?
ARHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHH!!!!!!!!!!!!!!!!!!
MelZ
Yup.
Here is your DNC card. The password for the special DNC bathrooms is "Stalin"
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Dependence is Slavery.
you officially understand Dem thinking.
It's odd that a lot of us have chosen that topic, by the way. I'll be posting my take on Dem logic in the next day or two.
.
The court, as usual used idiotic reasoning to come to a politically correct decision.
However, the law was a stupid one. If a child rapist knows he faces a possible death penalty it will be much more likely he kill the child.
"Nothing works like freedom, Nothing succeeds like liberty"
Kyle
Still ought to be up to the states, rather than the SC, yes?
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Dependence is Slavery.
Right alongside the child rapists.
And may Anthony Kennedy's seat be the hottest.
What an effin' outrage!
And illogical to boot.
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Just a typical, small town, British-American girl...
As this thread has progressed it is taking the same path the political conversation will take and it is why i urged that the emotional issue be discarded for the 'eye for an eye' argument and let it go at that. Obama today came up supporting the death penalty for child rape. Child rape is a horrible thing and the penalty should be the utmost of severe, and forever, without parole, but to make this argument based in the emotional outrage over the crime totally ignores the constitutional issue that should be driving this debate.
And this thread is proof positive that the real issue here, the 'fluid' constitution based on the public present sentiments, in other words, NOT a constitution but a suggestion intead.. is being lost.
Obama will dominate this topic but claiming support for what he now knows cannot happen and the real topic will be ignored. The issue of a run away court will sit in the backyard while they continue to weaken the foundation of the nation.
Well meaning spirits here have taken the emotional argument and tweaked it to pretend to know what McCain nominees would do. You have no such clue. And you are being wagged like the tail of a dog if you allow this discussion to remain focused on the emotional outrage and NOT the protection of the very foundation of this nation.
So there.
Eye for an Eye arguement breaks down when it comes to child molestation.
What is "Eye for an Eye" for molesting a child?
Frankly, given what molesting a child does to them, Eye for an Eye would BE the death penalty.
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Dependence is Slavery.
My comment about 'eye for an eye' was the definition by the court of capital punishment for the taking of a life, not the ruining of a life. That issue is the emotional issue, and I am sorry to say, if we allow the emotional issue to dominate the debate the substantive issue of legislation from the bench will go unnoticed and continue to erode this nation's very core. In no way was I inferring that a child's being a victim of such a crime was in any way less than the need to punish the perp as harshly as possible. I am refering to the issue of a national concern. Obama is going to own this ruling because conservatives are focusing on the emotions and ignoring the very damaging wording of the court's self imposed definition of how to 'interpret' the Constitution.
arm?
leg?
both arms?
etc
all with NO sexual activity?
Mike DeVine’s Charlotte Observer columns
www.theminorityreportblog.com
"The way to stop discrimination on the basis of race is to stop discriminating on the basis of race." - The Chief Justice
for a leg etc. for any child but the Supreme won't give that to me either....child molesters take the very life (soul) of a child and should die for it! That is an eye for an eye!
Freedom of Religion NOT Freedom from Religion
then?
what about all 4 limbs?
I have a purpose in these questions.
Mike DeVine’s Charlotte Observer columns
www.theminorityreportblog.com
"The way to stop discrimination on the basis of race is to stop discriminating on the basis of race." - The Chief Justice
...take a hit every time one of these awful decisions comes down, because they inflicted us with Kennedy and Souter (and O'Connor for over 20 yrs).
for many years. I never tried a case for a guilty defendant. I pled those out. I won many not guiltys.
I also handled many family court cases both for and against the alleged perpetrator.
He is a fact I saw in most cases. The most harm done to the child that would have a lasting effect was most done by DSS and/or the parents in their reaction to the abuse than what would have been the effect of the act by the pervert alone.
We do children no favors by telling them they can't get over it. And that is essentially what we do. It is a crime to tell a child they can't make it in life unless they go thru eons of therapy sex talk.
I have seen this OH SO MUCH and it makes me sick.
more later
bring it on
GC is tough
Mike DeVine’s Charlotte Observer columns
www.theminorityreportblog.com
"The way to stop discrimination on the basis of race is to stop discriminating on the basis of race." - The Chief Justice
This Ruling, or at least how it affects my State, has nothing to do with innocent men who are being railroaded by shady people. That does indeed happen, and the innocent need to be protected from it.
However that is not why I am upset with this ruling. In Oklahoma, until this ruling, there was a state law that repeat child molesters/rapists could get the death penalty.
In other words, if they had a pattern established of forcibly diddling children under the age of 14, they could be put to death.
It did not happen often, but it was at least available.
Now it isn't.
This isn't about 'unfair punishment' or 'eye for an eye' or even about protection of those under false accusations.
This is about lowering the severity of punishment for raping multiple children. One more step towards the normalization of sex with minors.
This is also about the Supreme Court overruling the wishes of the people (Oklahoma, Louisiana and a couple other states had existing laws that allowed for repeat child rapists to be executed) claiming that it was by the will of the people that they be struck down. This, in my mind, is no different than the courts striking down "No Homosexual Marriage" laws after it has been put to a full vote of the people.
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Dependence is Slavery.
But my main reason for opposing capital punishment for non-homocides is the moral inherent in the "eye for an eye" Jewish law. That law was seen as move away from Barbarism of the pagans who killed people for all kinds of offenses short of murder. Proportionality is the way. Moreover, to not favor the death penalty when a child is beaten in non-sexual ways seems quite obtuse. Many sexual assaults leave no physical injury.
Mike DeVine’s Charlotte Observer columns
www.theminorityreportblog.com
"The way to stop discrimination on the basis of race is to stop discriminating on the basis of race." - The Chief Justice
I'm not sure if you have been molested or raped as a child, but I can tell you that I'd have preferred to be beaten as a child than molested.
Remember, also, the the Death Penalty is not just to be a form of punishment. It is also to serve as deterrant to others who would have temptation to commit such an act as well.
If we continue to make punishment for the misuse of minors lighter and lighter, we will find ourselves in a sitution in which such sexual acts become 'accepted' where they ought not.
I am not suggesting that we kill people who deviate from sexual norms, of course, but I am suggesting that the first step to acceptance of anything illegal is to reduce the punishments for it.
The greater issues, behind it, I feel is the Supreme Court's suggestion that its view of the 'will of the people' outweighs the voting record of the people.
The people in a few states have supported such measure and now the Supreme Court says that they really DON'T support such measures.
While the Supreme Court is in the business of determining the Constitutional nature of laws, it shouldn't be in the business of ruling based on its perception of popularity of any decision, especially not if it is going to use popularity as a reason to run counter to the vote of the people.
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Dependence is Slavery.
violence and/or serious if an physical injury. Most are gropings and/or non-injury causing penetrations of mouths, butts or vaginas.
I would contend that such assaults should not be equated with
a) either sexual assaults like the above that are accompanied by aggravated violence, ie. being beaten up and losing one's limbs, eyes, ears, etc
or
b) aggravated violence w/o any sexual connotation.
see my point?
seriously man, would you rather be blind from an assault or have to deal with having had a penis put in your butt?
not close
of course if all the counselors tell you that you are forever a basket case and makes the prophecy fulfilled, then maybe blindness would be preferable
Lance, I know whereof I speak due to my dealings with DSS workers and hysterical parents who I think often drive their children crazy after the fact.
And I think when most people speak of killing sex offenders they are thinking of the ones that do physical harm.
If not, then we would run the great risk of killing many innocents because many false allegations are made in the absence of physical evidence.
Mike DeVine’s Charlotte Observer columns
www.theminorityreportblog.com
"The way to stop discrimination on the basis of race is to stop discriminating on the basis of race." - The Chief Justice
No one is requiring the death penalty for child molesters/rapists.
However, it ought to be an option for those the State deems fit for it.
I never went to therapy. We couldn't afford it. My experience comes not from working with State Departments or parents, but by being someone who was molested as a child.
No one is calling for anything but having the ability to put to death child molesters or rapists who have an established pattern of being repeat offenders who are a danger to children. There is no call to execute anyone who has charges brought up against them.
This is about the STATE being able to determine that repeat child rapists ought to be able to be put to death if the STATE determines that they should be, not based on what the Supreme Court says the 'majority' of people want (even when those in the respective states have voted otherwise)
Stop talking about the innocent person who is falsely charged, as they aren't the ones that the States are considering for the death penalty.
We're talking about repeat child rapists....
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Dependence is Slavery.
Stop talking about the innocent person who is falsely charged, as they aren't the ones that the States are considering for the death penalty.
Innocent people do get convicted. And an innocent person convicted of a crime is many times more likely to get falsely accused of the same crime a second time around. He will automatically be under suspicion because of his prior conviction.
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Underlying most arguments against the free market is a lack of belief in freedom itself. - Milton Friedman
Sorry, you're still not in the same ballpark as what these laws are talking about.
The same applies to murder though. Yet you support the death penalty for murder, as you alluded to earlier.
The same can happen to ANY crime, that is not a reason to get rid of punishments.
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Dependence is Slavery.
Different types of crimes have different false conviction rates. I would suggest that the false conviction rate for these kinds of crimes is probably among the highest of any type of crime, given how easy it is to manipulate kids into reporting whatever you want them to report, either intentionally or unintentionally. Murder, on the other hand, probably has one of the lowest false conviction rates. There isn't a victim around to point the finger at the wrong guy... the victim is dead and isn't saying anything. They usually need some kind of forensic evidence to pull off a conviction nowadays.
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Underlying most arguments against the free market is a lack of belief in freedom itself. - Milton Friedman
Still not what the Death Penalty option is for.
Repeat Child Rapists.
Sorry, I support the idea, not just because I agree with it, but because the States determined the punishment and the method.
It was the Supreme Court that stuck its nose into a State's Right issue and overturned the state.
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Dependence is Slavery.
the State also have the option to put to death those people that do great non-sexual physical harm to children as well? And Lance, take it from the rape law expert here, these laws have the hazard of actually having to be written down using the imperfect vehicle of language that can used to apply to all kinds on unintended cases.
I'm not going to stop talking Lance. We have the first amendment. Yes, I do think that one good reason for only applying the death penalty to homicide cases is that at least in that one case we have a dead body.
Moreover, while I oppose the death penalty for non-homicides, don't you think that if we are going to have the death penalty in child rapes that there must be required some physical evidence/damage?
and Lance, you don't help your case by personalizing it. Just the opposite. Don't Chicken hawk me.
I was molested as a child. That is irrelevant.
Mike DeVine’s Charlotte Observer columns
www.theminorityreportblog.com
"The way to stop discrimination on the basis of race is to stop discriminating on the basis of race." - The Chief Justice
Moreover, while I oppose the death penalty for non-homicides, don't you think that if we are going to have the death penalty in child rapes that there must be required some physical evidence/damage?
You're using kind of cheap tactics here. Once again, these laws are for repeat child rapists. This is not a case of "Did He do it? I don't know... but let's kill him just in case."
You state this as though I am requiring anyone accused of molesting or raping to be killed on the spot.
I am saying that it should be up to the States, not the Supreme Court, to decide if the death penalty ought to apply to the case of repeat child rapists.
If people don't want it to apply, they submit bills to change the law.
and Lance, you don't help your case by personalizing it. Just the opposite. Don't Chicken hawk me.
Don't try and bully me. Don't suggest that I have no experience related to any of this. Don't try to take on the "I know better than you so just be silent and accept my way" attitude.
There. See? I can hurl insults too.
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Dependence is Slavery.
bullying?
I have said this up to the states Lance. The debate now is what a state SHOULD do or not do by weighing the pros and cons.
savvy?
And hey, admit it, you would rather have your eyesight and be free of physical brain damage that to merely have to get over an experience?
right?
I know I would and have!
Mike DeVine’s Charlotte Observer columns
www.theminorityreportblog.com
"The way to stop discrimination on the basis of race is to stop discriminating on the basis of race." - The Chief Justice
Where we disagree is on what the State should be allowed to do.
4 States have determined that the Death Penalty can apply to cases of serial child rapists.
I have no problem with that, especially since it was the people who determined this.
Now, this is not a "requirement" to put them to death, just that the option is open as the State sees fit.
I wouldn't support a mandatory death sentence for any crime, but I do believe that there should be an option open for at least a few crimes. (Murder, serial child rape, treason (though that tends to be federal not state), etc)
And yes, it is a personal issue to me as I was molested. Just as I'd bet that someone who lost a spouse to murder would be more likely to have an opinion on punishment for murder.
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Dependence is Slavery.
are ALLOWED TO DO. We disagree with what they OUGHT to do.
get it now? seriously
I agree that the US Const does not prohibit states from imposing the death penalty in these kinds of cases.
lets get this clear
Mike DeVine’s Charlotte Observer columns
www.theminorityreportblog.com
"The way to stop discrimination on the basis of race is to stop discriminating on the basis of race." - The Chief Justice
I apologize, I put allowed where I meant ought.
no need to yell.
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Dependence is Slavery.
states, only
cruel AND (not or) unusual punishments are prohibited.
that leaves the states wide latitude.
MAY I SHOUT I LOVE MY BROTHER KATES IN CHRIST?!
Mike DeVine’s Charlotte Observer columns
www.theminorityreportblog.com
"The way to stop discrimination on the basis of race is to stop discriminating on the basis of race." - The Chief Justice
Sorry, generally all caps is the internet form of yelling.
And yes, you may shout that you love me in Christ.
I'd even take you to the shooting range.
I don't dislike people I disagree with unless they show poor character in such disagreements.
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Dependence is Slavery.
and that the problem with yelling is the sound of it, not harm to the eyes from seeing all caps.
gc is sensitive to ear drums!
Mike DeVine’s Charlotte Observer columns
www.theminorityreportblog.com
"The way to stop discrimination on the basis of race is to stop discriminating on the basis of race." - The Chief Justice
Correct, we cannot hear yells over the internet, which is why typing a series of words in all caps is considered the internet version of yelling. Has been since the general public had access to the internet, with far less help from Al Gore as he'd like to take credit for.
We can argue about whether typing in all caps is 'internet yelling' if you wish, but it would be the silliest argument over the internet since the "Star Wars vs. Star Trek: Which is better?" Arguements back when AOL was "dialup only" in the mid 90's.
Heh. It is what it is, and if you didn't mean to be 'yelling' that's fine.
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Dependence is Slavery.
but Lance, is yelling always such a bad thing? Brother, here I am trying protect children from losing their eyesight by kiling assault and batterers and you focus on all caps!
smile
Mike DeVine’s Charlotte Observer columns
www.theminorityreportblog.com
"The way to stop discrimination on the basis of race is to stop discriminating on the basis of race." - The Chief Justice
The yelling thing aside (though all I said was "no need to yell" whereas you tried to tell me that, despite what a reasonable person would reasonably take from your all caps, you weren't 'yelling') you bring up an interesting point.
At what point can someone defend themselves to the point of killing an attacker?
If it is 'at any age' why do we limit the ways by which a child can protect themselves from an attacker?
I'm not calling for children to carry firearms, by any means.... just an interesting thought that we give someone a right to do something, but not the ability to have the same access to the tools their attacker might.
Should it be a set age? I know many immature 40 year olds who I wouldn't trust with a cap gun.
Should it be based on a subjective test of maturity? Too easy to misuse.
I've wondered about that from time to time, but never could get past the problem with arming immature children, especially in this age where they are censored from education on the safe use and handling of firearms. (Unless they have some loving family that is intelligent enough to know that safety education is vital, as chilren from homes without guns can still find guns on the street or at someone else's home.)
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Dependence is Slavery.
and I am a proud geek, albeit one that can fight and play sports with great efficiency!!!
All caps bring emphasis to words people need to clarify!
COOL!
Mike DeVine’s Charlotte Observer columns
www.theminorityreportblog.com
"The way to stop discrimination on the basis of race is to stop discriminating on the basis of race." - The Chief Justice
Especially given the frequency of false accusations made in these kinds of cases. But the reasoning the court used to strike it down is ridiculous. What does the 8th amendment have to do with circumstances under which someone can be punished? If the DP is cruel and unusual, it is cruel and unusual in all cases, including murder, not just when it is used to punish a child rapist. Then the whole crimes against the state exception adds another level of stupidity to the decision.
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Underlying most arguments against the free market is a lack of belief in freedom itself. - Milton Friedman
That is why the 4 states that have such a law (I know for sure Oklahoma does, I believe the rest do as well) limit the death penalty to repeat offenders.
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Dependence is Slavery.
I would not be comfortable lumping 15 year olds in with 6 year olds. If it was just for repeat offenders against prepubescent kids where the state also had to meet an extra high burden of proof (must have DNA evidence, convictions on witness testimony would not count), then I could support the law. Of course, in my state, we don't even have the death penalty for murder, so it's not going to happen here any time soon.
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Underlying most arguments against the free market is a lack of belief in freedom itself. - Milton Friedman
In Oklahoma, the age for such a thing is 14.
The age of consent is 16.
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Dependence is Slavery.
Some young adult got ensnared in a law intended for child molesters in the south east somewhere for sexual contact at a party with a willing 14 or 15 year old (I forget the guy's name, but it got national coverage) and sentenced to years in prison. As overly harsh as his prison sentence was, it would have been far worse if he were put on death row for the offense.
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Underlying most arguments against the free market is a lack of belief in freedom itself. - Milton Friedman
That isn't what the death penalty is handed out for.
These are for repeat child rapists, not for a 16 year old that has sex with his 14 year old girlfriend.
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Dependence is Slavery.
He ends up on death row. So I'm not really seeing the distinction there. That punishment simply does not fit the crime, whether he did it once, twice, or 10 times. Legislatures are often very sloppy when they put together this kind of legislation, for whatever reason, which is why I'd have a hard time supporting it except under very limited circumstances I already outlined.
We all agree that SCOTUS was totally wrong in throwing it out, though.
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Underlying most arguments against the free market is a lack of belief in freedom itself. - Milton Friedman
No, if he or she does it more than once, there is an OPTION to put them on death row.
It is not an automatic.
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Dependence is Slavery.
That is the problem with the law... the law should be specific enough so that terrible miscarriages of justice can't happen if the judge and jury get it wrong. That's why the legislature sets maximum penalties on crimes in the first place. We could just put a maximum penalty of death on every offense and leave it up to the judicial system to decide. The reason we don't is because in some proportion of cases, people will be given crazy sentences that are far out of line with what other people have been given for committing the same offense. Capping punishments legislatively is one way to deal with that problem. That's why I could never support this law unless it was written in a very restrictive way.
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Underlying most arguments against the free market is a lack of belief in freedom itself. - Milton Friedman
It is also not a situation where they walk from the sentencing room into the execution room.
Anyone on death row gets MANY appeals.
As for whether the laws are written to your satisfaction.... I can't argue that. You'd have to go read them then address the issues.
Read them before you decry them as wrong.
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Dependence is Slavery.
the right to have the death penalty under this circumstance given the meaning of the terms cruel and unusual punishment when ratified.
Mike DeVine’s Charlotte Observer columns
www.theminorityreportblog.com
"The way to stop discrimination on the basis of race is to stop discriminating on the basis of race." - The Chief Justice
be some physical evidence. In all homicides (unless the body is missing) we have same. So in child rapes, shouldn't we require, for the death penalty, that it be reserved only for cases with physical injury? and if so, then why not the death penalty for cases of assault and battery of a high and aggravated nature?
we cool?
Mike DeVine’s Charlotte Observer columns
www.theminorityreportblog.com
"The way to stop discrimination on the basis of race is to stop discriminating on the basis of race." - The Chief Justice
I have no problem with that, and I would suggest that the states with such laws also follow with you.
However, the Supreme Court disagrees with you and says that the states can't make that call even then.
THAT is where my issue is.
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Dependence is Slavery.
Mike DeVine’s Charlotte Observer columns
www.theminorityreportblog.com
"The way to stop discrimination on the basis of race is to stop discriminating on the basis of race." - The Chief Justice
cap "yelling".
in a timid voice "fire"
as movie theatre burns down...
Mike DeVine’s Charlotte Observer columns
www.theminorityreportblog.com
"The way to stop discrimination on the basis of race is to stop discriminating on the basis of race." - The Chief Justice
speaking of speaking too loudly at the wrong time...
I was in a store with my father, and he wanted to go to Aldis. We were surrounded by a bunch of people, so I was trying to tell him that I had my pistol with me and couldn't go into Aldis, without saying "I have my pistol with me" (because we were surrounded by people)
He kept asking why, and I kept saying "Because I cant" and I'd pat where my pistol is concealed.
Then he caught on and loudly (not on purpose) said "OH, you have your GUN with you?!"
Thanks Dad. I'm just glad we didn't meet up with screams from the people around and had the cops meet me with guns drawn.
I think that while he said it loud enough for EVERYONE to hear, they weren't paying attention.
Thank the Lord.
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Dependence is Slavery.
McCain and the Republican Party need to equate the liberal reasoning of Justice Kennedy with the liberal reasoning of Barack Obama.
Child rapists have certain protections versus their victims??!
This is just absolutely disgusting.
"Strength and Honor."
"What we do in life, echoes in eternity."