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June 25, 2008

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I can't agree. If you're going to have the death penalty as a regular part of the justice system (as opposed to something truly exceptional, like Eichmann in Israel, say), then a victim's death seems as arbitrary as any other line. You have equivalent grey areas with manslaughter and of course the varying "degrees" of murder. And there's a strong case to be made that child rape is a worse crime than murder.

Now, I'm of the opinion that capital punishment in general is morally wrong, bad practice, and unconstitutional on a number of grounds, but that's not the question.

I agree with Ginger to a great extent -- the lifelong consequences to the victim can be horrendous. But the alternative is to suggest to the offender that he'd be better off killing his victim and eliminating a witness (often, the only one) than letting the victim live. This puts the Court between a rock and a hard place.

On one hand I agree with Ginger- it's really difficult to assess state-sponsored killing as appropriate for some heinous crimes and not others. On the other hand, the law has to make such difficult distinctions and it does. I think death penalty opponents should advocate for restricting its application as much as possible.

I think it would be the right call as a policy preference because I have serious questions about the likely sufficiency of proof (see for example the day-care Satanist child abuse convictions across the nation which included prosecutions by such later-to-be-famous prosecutors as Janet Reno). I think it might be a good policy call because it could increase the chance that the child would get killed.

Constitutionally it is complete garbage.
The 8th amendment is not about those kind of policy questions. Sorry it just isn't. You could design an 8th amendment that took such ideas into account, but our is not such an amendment.

This is yet another in the long Kennedy line of "changing moral consensus" decisions where the consesus can only change in directions he likes; evidence that the consensus ever changes in the other direction doesn't count (see his other recent decision on the death penalty where the state evidence shows trends opposite from what he wants).

Let's have a national referendum on "Death Penalty for Child Rape" if you want to pretend there is an enormous national consensus on the issue. I strongly suspect you will find that it is a closely divided issue, not at the end point of some evolving/evolved national consensus.

And you don't get to raise the idea that the Constitution protects the minority ideas against the majority in this context. If you appeal to the national consensus regarding evolving moral standards you aren't invoking the counter-majoritarian parts of the court function.

There are importnat policy decisions that aren't written into the Constitution. If you want them to be Constitutional issues, please submit an amendment.

And once you open the door to allowing people to be executed for actions short of death, it introduces an enormous amount of uncertainty and unfairness into the system.

There's not an enormous amount of uncertainty and unfairness in the system for capital murder cases? What country do you live in? Because is certainly isn't the US.

I'm with Sebastian: As a policy matter, we really don't want to put rapists in a position where they're better off if they murder their victims. But that's not a policy the Constitution happens to embody.

Strange how the public consensus is always developing in a direction Kennedy approves of...

Death isn't a bright line even now, unless you only consider crimes against individuals. We can still execute traitors and spies. But that is "different."

Another opinion that imposes the views of five justices for the legislatures of the 50 states. Wow, 14th, you've come so far!

The facts here are horrible. Any rape is atrocious. This is even worse if that can be said. The Court left the door open in Coker and slams it shut here even after careful consideration by many states simply because in its "independent judgment" "evolving standards of decency must embrace and express respect respect for the dignity of the person, and the punishment of criminals must conform to that rule." How about a little respect for the victims?

The court apparently doesn't consider this perp among "those offenders who commit ‘a narrow category of the most serious crimes’ and whose extreme culpability makes them ‘the most deserving of execution.’" Uh, did they read the same facts I did? Regardless, the legislature did find this class of crime to be within those bounds.

But just because only five states have passed such laws there is a "consensus" that actually informs an analysis of the Constitution? So much for states acting as laboratories and coming up with better ways of running society. And so much with leaving the amendment process as outlined in the Constitution. Unilateral amendment by five is so much quicker!

What a raw usurpation of legislative authority and a complete disconnect with what it must mean to be raped. You gotta love the moving target analysis of the Constitution!

I'm an absolute abolitionist when it comes to capital punishment. And I've come to treat decisions on the issue very pragmatically. While I have yet to form an opinion about whether or not the case is, in some abstract sense, correctly decided, state-sponsored murder as punishment is wrong and evil. It is good that this ruling will lead to less of it.

Sebastian, what do you think "cruel and unusual" means, if "evolving standards of decency" doesn't enter into it?

Bear in mind that standards of decency with respect to acceptable punishments were very much in a state of flux during the founders' lifetimes--consider flogging, or hanging, drawing and quartering. Jacobite rebels in '48 were tortured to death, but that wasn't likely to happen to Washington and Franklin if they lost the war.

You know, AFAIC, nobody is going to get real far railing against decisions like this on any kind of Constitutional basis when they drop stink bombs like, "How about a little respect for the victims?" Please point out all Constitutional language that deals with the rights of crime victims kthxbye.

On behalf of the Namoldi Nation, we applaud Justice Kennedy’s decision to side with the liberal wing of the Supreme Court on this important matter. Although our internal codes recognize the biophysical limitations of pre-teens in practice, the letter of our legacy remains nine years.

Any attempt to trample upon this legacy is illegitimate, and will not be recognized.

May peace be upon you;

I agree with Ben. And I've never understood those who don't believe the government can even handle a zoning case correctly will nonetheless approve of state selected killing.

And certainly there are many horrible cases of child abuse that don't involve rape, but are henious and have lifelong effects on the child nonetheless. Do we execute those perpetrators as well?

As for Publius' "bright line." Trying to draw it in gray areas only dims the line. Make it black and white, no state sponsored killing.


These concerns overlook the meaning and full substance of the established proposition that the Eighth Amendment is defined by “the evolving standards of decency that mark the progress of a maturing society.” Trop, 356 U. S., at 101 (plurality opinion). Confirmed by repeated, consistent rulings of this Court, this principle requires that use of the death penalty be restrained. The rule of evolving standards of decency with specific marks on the way to full progress and mature judgment means that resort to the penalty must be reserved for the worst of crimes and limited in its instances of application. In most cases justice is not better served by terminating the life of the perpetrator rather than confining him and preserving the possibility that he and the system will find ways to allow him to understand the enormity of his offense. Difficulties in administering the penalty to ensure against its arbitrary and capricious application require adherence to a rule reserving its use, at this stage of evolving standards and in cases of crimes against individuals, for crimes that take the life of the victim.

This is why I find Kennedy's decisions so ridiculous. He can choose the "specific marks" which are "on the way to full progress" that he likes. If it isn't part of his personal (or specifically 5 members of the court) desired end point "on the way to full progress" he can ignore any other marks because they don't represent progress toward that endpoint.

Further he offers no hint about how the 8th Amendment decides what counts as "the worst of crimes". In my moral opinion, child rape is one of the worst of of crimes. And I'm relatively confident that if you were to poll on "Is child rape one of the worst of crimes" you would find an overwhelming affirmative. But how does the 8th amendment decide that anyway? It is impossible to tell until Kennedy picks his pen and writes.

"In most cases justice is not better served by terminating the life of the perpetrator rather than confining him and preserving the possibility that he and the system will find ways to allow him to understand the enormity of his offense." What kind of garbage is that? What does "preserving the possibility that he... will find ways to allow him to understand the enormity of his offense" have to do with the 8th amendment? Am I to understand that life imprisonment might not be allowable either? I don't like where this one sounds like it is going.


The temperature in Hell must be dropping fast, because I find myself in agreement with Sebastian. The opinion is a mess.

That said, 8th Amendment jurisprudence doesn't make a whole lot of sense. But neither does the Exxon case. People can be sent to prison for life for a minor offense given prior conduct, but punitive damages on corporate entities are sharply limited. Huh?

Well, I disagree with Ginger, and will post more later, but, well, in response to this:

If you're going to have the death penalty as a regular part of the justice system (as opposed to something truly exceptional, like Eichmann in Israel, say), then a victim's death seems as arbitrary as any other line.

But that's why the law exists. To draw those bright lines in foggy territory. Of course it's arbitrary (in a sense), but it's choice as an arbitrary line is based in some rationale that's reasoned-based and can be debated.

In short, the fact that it's arbitrary isn't a criticism that's persuasive in the least. Any bright line will, in a sense, be arbitrary. The question is which of those lines is best, most just, leads to the best outcomes, etc etc. And in that case, you need to be arguing against the rationale and/or for a different rationale (living w/ rape is a fate worse than death, or w/e)

So yeah. You need to say more.

As it is, though, bc is right: the theoretic bright line we're discussing right now actually doesn't exist, when you include crimes against the state.

Phil, "Please point out all Constitutional language that deals with the rights of crime victims."

You'd get further with this argument if it weren't for the fact that Kennedy seems to believe that the policy considerations regarding victims are an appropriate consideration. You can't have it both ways.

Rea: "Sebastian, what do you think "cruel and unusual" means, if "evolving standards of decency" doesn't enter into it?"

If it is acceptable to evoke evolving standards of decency, we are firmly outside of the Court's often invoked counter-majoritarian purview. So we are in majoritarian territory.

And since we are expounding Constitutional principles here, and expect to overrule simple majoritarian legislative acts, we should have a large and country-wide majority. The typical level in other such areas (for Constitutional amendments for example) is 2/3 or 3/4. Let's make it easy at 2/3.

There is no such overwhelming majority for the alleged evolving moral consensus.

In fact you'd be lucky to get a threadbare simple majority unless you really worked the polling question.

I second Sebastian in all respects.

As for the death penalty in general: Although I have no moral objection to execution in appropriate circumstances, I've developed strong objections to the process by which the US doles out executions. I would support a moratorium (at the least). But the method to get that moratorium should be by persuading your fellow citizens, not based on the personal preferences of five unrepresentative men and women in black.

I personally think that what "cruel and unusual" refers to is judges getting viciously "creative" during sentencing. But it's no surprise the judiciary is disinclined to view any clause of the Constitution as a defense against judicial wrongdoing.

This decision is complete and utter crap, as was Roper.

And I say this as someone who favors abolishing the DP.

I oppose the death penalty for all crimes, no matter how heinous, for a whole raft of reasons from the death penalty being an ultimate distortion of the justice system to the problematic application of the death penalty rape both on grounds of racism and on grounds of an imperfect justice system finding the wrong person guilty.

I also oppose forced pregnancy for the victims of child rape: which cruel penalty has been in the news in Europe recently, on a couple of occasions, as pro-life" ethicists try to force little girls to have babies because a rapist impregnated them.

I understand Sebstian's point about Kennedy ruling more on his own sense of what is responsible, rather than on and interpetation of the Constitution itself. However I think it is mistaken for one (not necessarily Sebasitian--this isn't aimed at him) to assume or to argu that conservative judges are going to interpete the CXnstitution rather than imposing their own sense of what is repsonisble or right. Scalia, Roberts, and Alito aare activist judges. they are rightwing authoritarian activist judges who use the excuse of adherence to orginal meaning to interpete the Constitution according to current Republican party ideas (mostly favoring business interests or a strong executinve branch).

I bring this up because this case will certainly be used as a wedge to promote Republican politicains in order to get more rightwing activist judges into courts all across the country and into the Supreme Court.

I think that all judges interpet the Constitution in terms of their own personal philosophies. It's human nature. I also think that when appinting or evaluating judges we need to think about the effect thier interpetations have on our daily lives. And I think that history shows that the effects of liberal interpetations ahve been positive for our society (Miranda, civil rights rulings, Griswold, for example).

I'm not arguing that this particluar ruling is in the same catagory as Miranda or Griswold. It is probably a bad ruling. My fear is that this bad ruling will be used to jsutify the appointment of rightwing activist judges who will make rulings that are even worse.

For once I find myself agreeing with Sebastian and Brett, at least on the policy/constitution issue. It's a policy problem that the death penalty creates undesirable incentives, not a constitutional one.

Michael, I understand that the law is (often) about drawing bright lines where none exist in reality. In fact, I think I actually agree with you. My point wasn't that the victim's death is an arbitrary criterion and therefore it's wrong to use it. It was that the arbitrariness of choosing which non-killing crimes are subject to the death penalty is no more arbitrary than that within killing crimes, and that there is just as much "uncertainty and unfairness" in killing cases.

Jesurgislac-

We agree on the DP. We part ways on your second point.

What you advocate is to compound the tragedy of rape with the murder of an innocent child. How is the child possibly to blame for the manner in which he/she was created?

i'm agnostic on the doctrine at this point. i'm a little skeptical of judges overturning these laws, but i also think precedent matters, and that's what I want to look at in more detail first.

my hunch is probably I'll end up saying (1) good result (2) crappy expansive reasoning. that's usually how kennedy 5-4 opinions work

Feddie: What you advocate is to compound the tragedy of rape with the murder of an innocent child.

What you advocate is to compound the tragedy of rape with the forcing of an innocent child through pregnancy and childbirth that may well kill her or permanently damage her health, including her ability ever to have children again in the future. That's a long, harsh penalty to exact of a child for being raped.

You see, I think the rape victim in a child rape case is still an innocent child. What you think of her I don't want to know, since it appears from your comment that the kindest possibility is that you don't think of her at all.

Phil, "Please point out all Constitutional language that deals with the rights of crime victims."

You'd get further with this argument if it weren't for the fact that Kennedy seems to believe that the policy considerations regarding victims are an appropriate consideration. You can't have it both ways.

You know, Sebastian, I'd think that at your age you'd eventually grow weary of resorting to the "I'm rubber, you're glue" tactic, but alas, here we are.

Aside from the fact that I haven't expressed a desire in this thread for any "way" at all, let alone two of them, bc is the one trying to have it both ways here. If he doesn't want Kennedy or the majority relying on extra-Constitutional language, reasoning or evidence for their decision, then he can't very well expect "respect for the victims" -- something way, WAY farther outside the Constitution than any talk of evolving consensus on 8th Amendment jurisprudence -- to have any bloody thing to do with it.

I'm actually in agreement with you that the 8th is silent on what types of crimes are up for consideration when it comes to execution, despite my general opposition to the death penalty. So there. But neither am I trying to drag in irrelevancies like "respect for the victim."

(That said, I find it beyond amusing into the land of surreal that, given the provenance of the case before the court, you, bc and other conservatives who spent the whole of Katrina and its aftermath railing about how corrupt and incompetent Gov. Blanco and the LA and NO governments are suddenly feel that that same government is competent to decide who should live and who should die. Amazing.)

The Washington Post article linked to in the post notes that Of 3,300 inmates on death row across the country, only two face capital punishment for a crime other than murder. Both were convicted under Louisiana's law, the broadest in the land. Who wants to make some bets about the ethnicities and demographics of those two people? Anyone?

Since pretexting is not per se unconstitutional, I will have to agree with Hilzoy on this front. A bright line rule needs to developed for qualification for capital crimes, I am just not sure where that rule is.

I agree with Freddy though, Kennedy 5-4 decisions are typically quite horrible in their reasoning. Only a few of those that I have read have made a lot of sense and mostly I am thinking about Mass. v EPA here. That was well reasoned. The rest, meh, not so much.

"but i also think precedent matters, and that's what I want to look at in more detail first.

my hunch is probably I'll end up saying (1) good result (2) crappy expansive reasoning. that's usually how kennedy 5-4 opinions work."

My problem is that if precedent matters, crappy expansive reasoning repeatedly extended ends up being really awful because the expansive reasoning gets more and more expansive each time.

In Roper, Kennedy explictly overruled Court precedent and made unsupportable statements about evolving moral consensus to make a fig leaf justification for it. From wiki "This case, which originated in Missouri, involved Christopher Simmons, who in 1993 at the age of 17 concocted a plan to murder Shirley Crook, bringing two younger friends, Charles Benjamin and John Tessmer, into the plot. The plan was to commit burglary and murder by breaking and entering, tying up a victim, and tossing the victim off a bridge. The three met in the middle of the night; however, Tessmer then dropped out of the plot. Simmons and Benjamin broke into Mrs. Crook's home, bound her hands and covered her eyes. They drove her to a state park and threw her off a bridge."

According to Kennedy there was an evolving moral consensus against executing someone who planned a burlargy and murder (the murder to make it less likely she could identify them) simply because he did it at 17. In reality, the recent trend at the time appeared to be going in the opposite direction, with states only recently allowing such executions and with other states only recently joining debate on the topic.

He doesn't respect precedent, why should opinions he writes be treated differently?

Roper is especially awful in that respect. The Supreme Court had ruled directly on the point of Roper (in Stanford) and had come to the opposite conclusion only 15 years before. There was no overwhelming national consensus that formed against the death penalty for 17 year-old in that 15 year period, and in fact the evidence of the trend was on balance in favor of such executions.

That (if the fact that you can't typically even get a bare majority against it in polls weren't enough) is what makes it clear that his "evolving national consensus" standard has nothing to do with actual national consensus.

seb/feddie - here's where I think I'll turn out. and note I haven't read it so this could change.

Roper is wrong. But, this case is clearly right under Roper. So the debate isn't so much this specific case but whether the methodology adopted in Roper makes sense.

even if you think roper is crap though, it is precedent. that doesn't make it dispositive. but the court, i think, does lose institutional credibility when it reverses itself so quickly simply b/c of political appointments.

publius,

Do you think the court had significant institutional credibility to lose after Bush v. Gore?

I join my colleagues in dissent :)

Kennedy's "national consensus" equals "one-way ratchet," as Alito said. There are many who argue that the Eighth Amendment does not empower the Court to even try to determine a national moral consensus. I don't entirely agree -- I think "cruel and unusual" has to have some weight to it, and the Court is the Consitutionally designated decider. But in the past, the Court has confined itself to recognizing strong, long-term, affirmative trends. Most states were getting rid of the death penalty, narrowing its application, etc. This time, the Court reasoned from the absence of a trend -- and did so prematurely. Alito is absolutely right, we will never know whether most States, or most people, want the death penalty for child rape, because the Court cut the debate off. Because the Court previously appeared to rule out the death penalty for any rape, most states didn't even try to pass such a law. That any did, should have given the Court pause.

Put simply, if the Court is going to ask for an informal national poll, it has to wait for the returns. This case should have been dismissed as improvidently granted.

Not that I mind the result much, but I believe in democracy. This is an issue people should get to vote on.

Publius-

I'll concede that Roper dictates the result in Kennedy. That much is clear.

But given my views on horizontal stare decisis, I don't find that argument in the least bit persuasive. SDIFS and all that jazz.

This is one of the few times recently that a Supreme Court decision has made me want to punch the sky with joy.

But this comment: "And there's a strong case to be made that child rape is a worse crime than murder."

Really? You can make that case? To a parent? Which parent, in particular, would prefer that their child be murdered instead of raped? Because I don't know any, and would be curious to meet such a creature.

Is that a collective sigh of relief coming from priests across the nation who couldn't or wouldn't stay out of their young parishioners?

As the late George Carlin observed, when Jesus said, "Suffer the little children to come unto me," that was not what he meant.

"even if you think roper is crap though, it is precedent."

But what about Stanford? Is there some institutional reason to respect Roper over Stanford? Especially when the reasoning on Roper depends on false facts distinguishing the moral consensus trend?

Furthermore, if we accept evolving moral consensus as a serious legal method (as opposed to just whatever Kennedy wants on any given day) why should we respect precedent at all on the point of what the consensus is?

"Roper is wrong. But, this case is clearly right under Roper. So the debate isn't so much this specific case but whether the methodology adopted in Roper makes sense."

I disagree. Roper is wrong, and we should have a debate about whether or not it makes an appropriate standard. But even accepting a Roper evolving standards jurisprudence, it isn't at all true that this case is clearly right under Roper.

There is in fact no national consensus that the death penalty for child rape is wrong.

Therefore, even if you analyze it under a theory of evolving national consensus, the current holding is an expression of Kennedy's will, not real legal thinking.

And it's the case of the priests that best illustrates why the death penalty shouldn't apply. The victims had the opportunity to see their abusers brought to justice and to get a financial settlement to help with the emotional issues they've had to face. Murder victims don't get that.

And as to whatever national consensus exists or doesn't, how many of the victims of those priest would say they would have preferred being killed?

Is that a collective sigh of relief coming from priests across the nation who couldn't or wouldn't stay out of their young parishioners?

This comment highlights the problem with statutory rape laws, they don't distinguish well between molestation and classic violent rape. Both are bad, but being coerced into giving a priest a BJ is not in the same league as the kind of damage suffered by the poor kid in this case, who was literally torn up from back to front. When Kennedy expressed concern about having to craft a whole new set of standards for how aggravated the child rape had to be to merit death, this is what he meant. Not that Kennedy was right - "you mean we might have to do some work around here?" is and always has been a lousy reason to issue a broad constitutional mandate.

I used to be 100% pro-death penalty.

Then I read John Grisham’s “The Innocent Man”. (Non-fiction. I wish it was fiction.)

Now, I’m with Jes. (On the legal aspects I have no opinion but I’m sure that the house lawyers will clue me in.)

One book has never made me flip-flop 180 degrees like this one. Buy it and read it. If you can’t afford it I will mail you my copy.

OCSteve-

JPII's writings did it for me.

I was iffy on it until I read Schenck's Innocence Project book. We just make too many errors in this process. I don't see how to fix that, either. We already have a ton of supposed protections, but in practice nobody tries very hard to enforce them, because accused murderers are not a big voting block.

Trilobite

I'm not trying to defend Kennedy, but trying to define where the attack crosses over the line to qualify for the death penalty is a job I wouldn't want to take on. Nor would I wouldn't want to explain to a child's parents that the attack was one broken bone away from the standard for the death penalty. So I can at least understand Kennedy's reason for not wanting to go there.

"I'm not trying to defend Kennedy, but trying to define where the attack crosses over the line to qualify for the death penalty is a job I wouldn't want to take on. Nor would I wouldn't want to explain to a child's parents that the attack was one broken bone away from the standard for the death penalty. So I can at least understand Kennedy's reason for not wanting to go there."

But it isn't his place to go there or not. That is why we have legislators.

And he made up the standard anyway, so the fact that his standard has problems in implementation is his fault in the first place. He is the one making the rather surprising argument that raping a child can't count as one of "the worst of crimes".

trilobite-

That was a concern of mine as well, and it is a very conservative one fwiw.

Why the same conservatives who don't believe government does anything well are confident in government's ability to handle death penalty cases is beyond me.

"I can at least understand Kennedy's reason for not wanting to go there."

So can I, but
a) This is why we have Article III judges, not elected judges
b) The same problems came up in the death penalty cases, tho more widows and orphans than parents, I suppose. Yet, somehow not just judges, but even legislators managed to stand up and say that you need particular aggravating circumstances.

Buy it and read it.

Done. As good as that is, I think Grisham ought to stick with nonfiction.

Why the same conservatives who don't believe government does anything well are confident in government's ability to handle death penalty cases is beyond me.

That puzzles me, too. Maybe having conceded that whether a person breeds or not or whether married adults use contraceptives is properly any of the business of government has fogged the brains of those conservatives.


John-

I am starting to believe that you really have zero interest in debating issues in good faith.

Unrelated- anyone else having problems with the RSS feed?

Constitutionally it is complete garbage.
The 8th amendment is not about those kind of policy questions. Sorry it just isn't. You could design an 8th amendment that took such ideas into account, but our is not such an amendment.

Once again, I note that this is utterly ridiculous. Kennedy's opinion is perfectly consistent with the text of the Eighth Amendment. Nothing in the text of the constitution forbids this reading, and Kennedy's opinion (while certainly disputable) is clearly consistent not only with the text but precedent. It remains bizarre that you continue to assert that the broad, open-ended language produces only one plausible answer (inevitably that of the most doctrinaire conservatives) in virtually every case.

Down to a 5-4 nailbiter, and I agree with Publius that this is a good thing. It's beneficial because maybe someday our nation will recognize capital punishment as the cruel and barbaric practice that it is. I maintain that it is cruel because the state should not have the power to execute an unarmed citizen.

I maintain that it is cruel because the state should not have the power to execute an unarmed citizen.

What does his armament have to do with it?Would it be better if they tossed him a gun and nerve-gassed him?

That was a concern of mine as well, and it is a very conservative one fwiw.

I used to think of myself as a moderate, until the current gang of fascists came in.

Why the same conservatives who don't believe government does anything well are confident in government's ability to handle death penalty cases is beyond me.

Because most "conservatives" are in fact authoritarians. They want the government in the bedroom, monopolies in the boardroom, and no actual liberty left for anyone else except the right to fondle a gun while being stomped on.

If you haven't noticed this, you have not been looking.

JFTR:

Reactions from Senator Obama and Senator McCain on Kennedy v. Louisiana :

Neither man seems too happy with the decision: at least Sen. Obama manages to frame his response somewhat intelligently: McCain just seems to have cranked up the Cliche-o-Matic. Again.

Ooops: link to McCain statement seems broken: so here it is:

“As a father, I believe there is no more sacred responsibility in American society than that of protecting the innocence of our children. I have spent over twenty-five years in Congress fighting for stronger criminal sentences for those who exploit and harm our children. Today’s Supreme Court ruling is an assault on law enforcement’s efforts to punish these heinous felons for the most despicable crime. That there is a judge anywhere in America who does not believe that the rape of a child represents the most heinous of crimes, which is deserving of the most serious of punishments, is profoundly disturbing.”

Scott, what in the world are you talking about? Even under its own terms, Kennedy's decision is garbage.

There is in fact no evolving consensus in the US that the death penalty for child rape is wrong.

Do you dispute that, or something else?

"It remains bizarre that you continue to assert that the broad, open-ended language produces only one plausible answer (inevitably that of the most doctrinaire conservatives) in virtually every case."

Look, I'm not even a death penalty supporter. I don't particularly think the justice system is reliable enough for the death penalty. If I were in a legislature I would either make enormous changes in the system, or vote against the death penalty every time. But not all policy arguments should be won or lost at the Constitutional level.

Broad language is not infinitely broad. There is no moral consensus in the US that the death penalty is wrong for 17 year-old murderers (Roper) or for child rape (Kennedy). Saying that there is such a thing is a lie. You may WISH it were true. You may DESIRE that it be true. But it is not true.

So even under Kennedy's 'legal' interpretation of the 8th amendment, the Court is wrong to outlaw the death penalty in child rape cases.

And interestingly, BOTH presidential candidates come out against the decision, which ought to give those who pretend that there is a broad consensus against the death penalty for child rape a pause.

But it won't, because the 'evolving moral consensus' test has nothing to do with actual moral consensus and everything to do with just having the judge chose what he wants.

Trilobite: The Innocence Project figures prominently here (the book I mentioned): Mark Barrett and Barry Scheck and others. I was just floored.

You start reading it and it is way easy to treat it as a fiction. Then at page 215 (at least in the 2006 paperback edition) you hit the pictures. Real pictures and real people. And it hits you (me anyway) – holy CRAP – this could happen to anyone!

Again, I can’t suggest strongly enough that folks read this book. It is literally capable of changing your mind (assuming you believe in the death penalty as I did.)

Just realized that I transposed "evolving standards of decency" into "evolving moral consensus".

But since it doesn't have anything to do with acutal evolving standards in the United States, my point remains.

(BTW I think my phrasing would lead to a more legitimate court ruling if it were true that such a consensus actually existed. If a large consensus existed to that effect there would be a much better argument that the one the court actually has. I gave him way too much credit. On rereading he has chosen an end point and will take as evidence only markers that contribute to that endpoint. Pure activism.)

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.

bc is the one trying to have it both ways here. If he doesn't want Kennedy or the majority relying on extra-Constitutional language, reasoning or evidence for their decision, then he can't very well expect "respect for the victims" -- something way, WAY farther outside the Constitution than any talk of evolving consensus on 8th Amendment jurisprudence -- to have any bloody thing to do with it.

How am I trying to have it both ways? I was simply responding to Kennedy's extra-constitutional policy argument. I think both arguments should be advanced in the legislature or as part of the Constitutional amendment process. And how is that any further away from the Constitution than Kennedy's argument? Please explain.

bc and other conservatives who spent the whole of Katrina and its aftermath railing about how corrupt and incompetent Gov. Blanco and the LA and NO governments are suddenly feel that that same government is competent to decide who should live and who should die. Amazing.)

Actually, I think determining who should be put to death should be in the hands of a jury with judicial review. And guess what? The jury decided to impose the penalty. It's that special branch of government that you are lauding that overturned that decision as being more "enlightened."

I'm not necessarily a proponent of the death penalty because of implementation concerns. Different question and one that should be addressed in the appropriate branch of government.

And what sebastian said.

i'm reading the opinion now -- it's really hard to support the methodology that led to this result. i think i'm changing my mind.

but more later (and, despite what i think, it's a close question that can certainly go either way).

I am back, at last for a little while.

I'm just fine with this decision. I approve of the outcome. The methodology looks bad, but so what? The justices don't need my vote and no opinion maker cares. In practical terms, this will save a few lives, rather than waste a few billion dollars or kill a few hundred million strangers who never meant harm to me. It's not like the loudest complaints against it wouldn't have been equally loud cheers if they liked the result, a few more dead people of the right sort on the pile.

On to the next issue.

OCSteve, for some reason I hadn't heard of that book, but now I'll try to get my hands on a copy. I've been opposed to the death penalty since senior year in high school; before that I was agnostic. Then I watched a news report on the death of John Spinkalink in Florida. When I saw the hearse pull up outside an hour or so before he was executed, at that point I knew without any doubt that I was against the death penalty, in all cases.

It's rare to know exactly the moment in which our moral and political opinions are formed, but in this case I do.

Sebastian: There is no moral consensus in the US that the death penalty is wrong for 17 year-old murderers (Roper) or for child rape (Kennedy). Saying that there is such a thing is a lie.

It is, however, a hopeful, ambitious lie. What in some circles is referred to as a wish or a prayer. There was no moral consensus in the US for ending slavery. There is no moral consensus in the US for opposing torture.

Why should the evil people who want to kill children, or who don't care who's killed for a murder so long as somebody's killed, or who like the idea of killing (some) rapists and aren't worried in the least about the long-term implications of deciding that some rapists deserve to die for their crimes, and who look at the racist application of the death penalty in the United States and argue in its defense that's just because black people are badder than white people, be allowed an input into a national moral consensus?

These people are evil, Sebastian. Evil and stupid. The notion that their input ought to be allowed to weigh down your national moral consensus with their nastiness makes exactly as much sense as arguing that because the Southern states opposed the right of black people to be free - or to vote, or to have equal civil rights with white people - there ought to be no changes made until a "national moral consensus" could be achieved.

Ecellent post, Jesurgislac. This also applies to the people who think that GLBT individuals should wait to be permitted to exercise their civil rights until they can convince some inexact proportion of bigots to support them at the ballot box.

Actually, I think determining who should be put to death should be in the hands of a jury with judicial review. And guess what? The jury decided to impose the penalty.

That fatally corrupt LA government still had to make the crime eligible in the first place. Otherwise, they could simply make ALL crimes eligible for death and "leave it in the hands of the jury." No?

It's that special branch of government that you are lauding that overturned that decision as being more "enlightened."

Please quote back to me all language with which I have "lauded" any branch of government whatsoever. Thanks in advance.

Jes, even a "hopeful, ambitious lie" is still a lie, and we don't want our courts ruling on the basis of lies. Once you've got a judiciary willing to rule on the basis of lies, who's to say they'll be lies YOU like?

Jes, even a "hopeful, ambitious lie" is still a lie, and we don't want our courts ruling on the basis of lies.

You don't want your courts to rule that the American people who are evil and stupid enough to want to kill children ought to be excluded from your nation's "moral consensus"? Somehow, that doesn't surprise me. Thomas More said he'd give the devil his due in law: he didn't say he'd let the devil make the laws that would give the devil the right to kill children.

Yes, Jes, I don't want the Judiciary ruling on the basis of a "moral consensus" that systematically excludes anybody who disagrees with the judiciary. As excuses go for imposing oligarchy on the country, that's a pathetically transparent one.

I don't want the Judiciary ruling on the basis of a "moral consensus" that systematically excludes anybody who disagrees with the judiciary.

Interesting how you keep revising that to eliminate what I said and what the facts of the situation are.

But what I said was: The judiciary are ruling on the basis of a moral consensus that excludes people who want to kill children.

I'm okay with people who want to kill children being excluded, as I am with excluding white people who want to enslave black people or deny black people their civil rights, people who support or promote forced pregnancy, and people who support torture. All of those people exist in the US. If you're going to have a judiciary that makes decisions by "moral consensus", then either you degrade your moral values to the lowest common denominator, or you agree that some "moral" values are not to be included in the balance.

You want to hear from the people who want to kill children, and want their views taken into account, and keep the legal right to execute children in US law until everyone agrees that it's bad to kill children for committing crimes. Okay. Stand up for that belief. Promote it. Don't wishywash around concealing what you're saying with euphemisms like "disagrees with the judiciary".

If you're going to claim you're ruling on the basis of moral consensus, you simply can't rig the game by excluding anyone who disagrees with you from the consensus. You might, conceivably, rule identically on some other basis, but not on the basis of consensus. The thumb on the scale is just too obvious.

And I agree with your general concept: If you're going to insist that your own opinion has to prevail, don't wishywash around concealing what you're doing by tendentious appeals to a "consensus" that actually disagrees with you. Just do it, out in the open.

Oh, and I don't think "children" should be executed. I think the Constitution doesn't prohibit it. I know you'll never grasp it, but there's an important distinction to be found there.

Brett: If you're going to claim you're ruling on the basis of moral consensus, you simply can't rig the game by excluding [people who want to kill children] from the consensus.

Fixed that for you.

I've never been terribly impressed by people who "fix" or "shorten" other people's arguments: It amounts to a confession that you're incapable of responding to the argument that was actually made.

In particular, your problem is that you are constitutionally incapable of moving from the particular to the general.

But, yes, if the only way you can get a "consensus" that children shouldn't be killed, is to exclude from your sample anybody who thinks they SHOULD be killed, you're generating a phony "consensus". You might still be right, but your basis for supporting your position is transparently phony.

And if you have to rely on a phony defense for your position, maybe it isn't right...

I've never been terribly impressed by people who "fix" or "shorten" other people's arguments

I've never been terribly impressed by people who weasel around what they're actually advocating and avoid saying it out loud.

You want the execution of children to be part of the US "moral consensus" because you think it's wrong to exclude from moral consideration people who want to kill children. But you very strongly want to euphemize this as "disagreement with the judiciary".

This amounts to a confession that you're incapable of defending your moral position, and are therefore trying to shift your ground over into something slightly more unspecific, something slightly less clearcut, something people might agree with.

If you want the US to support child execution for so long as some moral scumbags are still arguing that it's only right to kill children, but you're ashamed to say so outright and defend this position, what does this say about your views? Do you yourself believe that child execution is really a part of the US moral consensus, when you can't even bring yourself to defend it without euphemisms on a blog?

What I'm advocating, Jes, is that judges not use transparently fraudulent appeals to "evolving consensus" to impose their own views on the nation. And I'd advocate that even in instances where I happen to agree with their views.

The idea that I might object to how and who did something, even if I was generally in favor of it being done by somebody, is quite alien to you, isn't it?

"The judiciary are ruling on the basis of a moral consensus that excludes people who want to kill children."

What does this even mean? First of all there isn't even a national consensus 17-year olds count as 'children' from a moral perspective in the sense that they either don't understand that killing someone is gravely wrong (there is nothing about being 17 that prevents that) nor that they are incapable of restraining themselves from killing people (17-year old impulse control may be weak but it isn't that weak or half of us wouldn't have survived school).

Second, you can't exclude about half (OR MORE) of the population and pretend it is anything like a moral consensus.

"I'm okay with people who want to kill children being excluded, as I am with excluding white people who want to enslave black people"

This is why I have trouble talking with you. You are directly comparing ME and about 50% of the population who agrees with me with someone who wants to enslave black people. Learn to make at least minor distinctions in your analogies.

It is as gross as saying "I have no trouble opposing people who want to micromanage my life, like Democrats, Stalinists and Nazis. "

Give me a break.

Jesurgislac;
It seems particularly silly of you to object to Brett Bellmore's generalizing his position when you are doing the same in a gross chariciture of your opponents position.

Its not people who want to kill children, its people who want to kill 16 and 17 year olds who have been found guilty of murder, and not just murder, but particularly gruesome murders with whatever statutory aggravating factors, and further have been found by a jury to have been able to appreciate the wrongness of those murders despite their young age.

Your position hardly seems so noble when you agree we can include in the consensus those who feel we can execute 18 year old murderers, just not 16 or 17 year old ones.

Sebastian: You are directly comparing ME and about 50% of the population who agrees with me with someone who wants to enslave black people.

From Amnesty International on Children and the Death Penalty (2002):

The country which has carried out more documented executions of child offenders than any other since 1990 is the USA.

In 1988 and 1989 the US Supreme Court ruled that the execution of people who were under 16 at the time of the crime was contrary to the US Constitution but that the execution of people aged 16 or 17 at the time of the crime was not.(31)

Fifteen US states were holding a total of 82 child offenders on death row as of August 2002. Eighteen executions of child offenders have been carried out in six states since 1990. One of those executed was 16 at the time of the offence; the others were all 17. Eleven of the executions were in Texas, the state which has carried out the largest total number of executions of prisoners since the resumption of executions in the USA in 1977 -- 281 up to 17 September 2002.

The background of most of the child offenders executed since 1990 was one of serious emotional or material deprivation. Many were regular users of drugs or alcohol with lower than average intelligence. Some had organic brain damage. Some had poor or inexperienced legal counsel. Highly relevant information was withheld at their trials due to incompetence or inexperience on the part of their lawyers.

If you read further down, you come to brief summaries of the cases which got these 18 people who were children at the time they committed the crime for which they were executed. 11 of the 18 were black, one was Latino.

There's a reason why I associate people who are happy to have the state kill children for their crimes in the same moral family as people who support slavery and oppose equal civil rights. Because when a black teenager is so much more likely to be killed by the state for committing a crime than a white teenager, the support for such racially-biased state killings looks racially-biased itself.

its people who want to kill 16 and 17 year olds who have been found guilty of murder, and not just murder, but particularly gruesome murders with whatever statutory aggravating factors, and further have been found by a jury to have been able to appreciate the wrongness of those murders despite their young age.

It's people who want to kill black teenage boys, mostly - black teenage boys who were, for the most part, not even given a fair trial before the state decided that their lives were worthless and they should be killed.

"Your position hardly seems so noble when you agree we can include in the consensus those who feel we can execute 18 year old murderers, just not 16 or 17 year old ones."

She just advocated lying for rhetorical advantage above, so insisting on calling a 17 year old who decides to rob a woman bind her up and throw her off a bridge so she can't identify them, is of course a 'child' if it suits her rhetoric.

so insisting on calling a 17 year old who decides to rob a woman bind her up and throw her off a bridge so she can't identify them, is of course a 'child'

...according to the Convention on the Rights of the Child, yes, he is.

As I said upthread: I oppose the death penalty for all crimes, no matter how heinous. But yes, I do think that deciding to kill someone for crimes committed before he's even of age, even if he committed murder, is a particularly heinous crime itself: even if you carefully don't look at the racist way in which this penalty is applied in the US.


I see, so you're only fine with people who want to kill black teenage boys who are 18 and 19, and throw the 16/17 black boys in prison for life. Thats a fine moral high horse to be on.
Look. I get that the criminal justice system in American Society suffers from the overall structural racism and classism of the society. Where I get off is when that goes on to mean that the whole criminal justice system has to be shut down. For at least the near term future the U.S.A. is going to continue to disproportionately convict, incarcerate, and execute black men. This will happen because, all in the aggregate, black men have less wealth and therefore commit a disproportionate number of crimes, will happen because black men have less wealth and can't afford the extra super awesome legal defense teams, and also because of some just personal racism of jurors.
What do you do about it? Well I am all for providing more resources to public defenders, decriminalizing low level drug crimes, improving prison conditions and improving the rehabilitation resources of the overall system. But until those are done, and heck if I can't get liberals elected and those things just aren't done, you have to do something with the people convicted of crimes.
I don't think that the injustice of the overall system so invalidates it that we can't punish criminals, including those sentenced with the death penalty.

TomO: Your position hardly seems so noble when you agree we can include in the consensus those who feel we can execute 18 year old murderers, just not 16 or 17 year old ones.

Actually, as I noted above, I oppose the death penalty without qualification.

And if you were arguing about the ridiculousness of having a bright line below which we do not treat people as adults for something as trivial as being entitled to have a drink or even something as vital as being able to vote, or as lifechanging as being allowed to join the army - I'd be quite happy to agree that there's wiggle-room, that some under-18s are adult and responsible people who are capable of being able to make good decisions. I'd still argue, though, that a line has to be drawn somewhere.

Should responsible, capable minors be allowed to buy themselves a glass of wine with their meal? If so, how do we test this? Should responsible, capable kids be allowed to vote younger than 18? If so, how do we test this? Should responsible, capable teenagers be allowed to join the army before they turn 18? If so, how do we test this?

And should responsible, capable youngsters be executed for crimes they committed under 18? If so, what tests do you plan to put these kids through to prove that they were self-controlled enough to be able to enjoy a glass of wine, well-informed enough to be rightly allowed to vote, of sufficiently mature judgement and ability to be able to join the army?

Judging by the descriptions of their cases, I suspect that that not one of the 18 boys killed by the US between 1990 and 2002 would have been able to pass a test that gave him the privilege of drinking early, voting early, or joining the army early. Yet you feel it's only proper to treat them like adults and kill them like adults?

I wouldn't be all that happy with someone who was comfortable with executing an 18-year-old murderer either, but I can see a moral difference between a person who will only support capital punishment when it is inflicted on adults who have committed heinous crimes, and a person who will support capital punishment even when it means killing kids.

TomO: Where I get off is when that goes on to mean that the whole criminal justice system has to be shut down.

Straw man. Ending capital punishment - or even just ratifying the Convention on the Rights of the Child and ending capital punishment of children - does not mean "shutting down the whole criminal justice system". It just means closing Death Row and investing resources elsewhere in the prison system.

That's not enough to fix things, but it does at least mean that people are no longer being killed by the state.

Actually, as I noted above, I oppose the death penalty without qualification.

Except we aren't arguing about that (a perfectly respectable, though IMO wrong, position). We are arguing about your statement that people who want to kill "children" (really 16/17 year old murderers) should not be considered part of the moral community when taking the moral consensus.
Which means you either really do want to exclude everyone who disagrees with you about the death penalty from the general consensus - or you have some good reason why its ok to count people who favor executing 18 year old murderers but not 17 year old ones.
And I think your we use arbitrary lines all the time argument is very weak. We use arbitrary lines all the time because its too expensive to bother with a specific testing policy. A trial already has to go through that expense, so I don't have a problem with the jurors concluding that the 17 year olds in question did understand sufficiently the evil of their actions.

Link B Gon?

"Straw man. Ending capital punishment - or even just ratifying the Convention on the Rights of the Child and ending capital punishment of children - does not mean "shutting down the whole criminal justice system". It just means closing Death Row..."

Not straw man. First part of a two part argument (both in the original post). The injustice of the system doesn't invalidate its results + there is no particular reason to invalidate only the death penalty results as they are no more likely to be injust than all the imprisonment convictions. It doesn't take out your conclusion just your supporting argument. You agree that we aren't morally required to shut the whole system down even though it has a lot of injustice in it, why then do we have to shut the death penalty part down for that reason?
I don't believe the death penalty is sufficiently different from life imprisonment to invalidate the one while being ok with the other. And you don't get closer to proving that when your arguments about how the system sucks apply equally to imprisonment.

there is no particular reason to invalidate only the death penalty results as they are no more likely to be injust than all the imprisonment convictions.

But the death penalty is irreversible. You can let someone out of jail, apologize, and give them financial compensation for the years wasted: you cannot dig someone up from a grave and bring them back to life.

Except a substantial portion of the injustice isn't innocent poor black men being convicted but guilty rich white men going free/getting lighter sentences.
Also, the overwhelming majority of people who cannot get their DP conviction overturned in the several years of appeals before the execution date would not get the conviction overturned if you gave them to their natural death to keep appealing.
Either way, an odd moral line to draw that thinking this is ok for 18 year olds is acceptable (if wrong), but for 16 year olds is beyond the pale.

Except a substantial portion of the injustice isn't innocent poor black men being convicted but guilty rich white men going free/getting lighter sentences.

How do you know, TomO? What study of crimes taken to trial are you basing this observation on?

Obviously, the injustices given high priority by the media are those of the wealthy. So if you're not basing this on a scientific study which examines the whole conviction rate across the US, but just on your general impression of crimes reported in the media, then all the scientific studies about the actual crime rate in the US versus the publicly perceived crime rate in the US say your "general impression" is most likely completely wrong.

Either way, an odd moral line to draw that thinking this is ok for 18 year olds is acceptable (if wrong), but for 16 year olds is beyond the pale.

You may find it odd that people draw a moral line between "how its acceptable to behave towards children" and "how it's acceptable to behave towards adults", and you may also find it odd that the standard place for this line to be drawn in international law is a person's 18th birthday. But so it is, and on this instance, your finding it "odd" just makes you parochial and ill-informed.

Oh, and the point is: Not that it's "acceptable" to kill 18-year-olds - since I've already said I oppose the death penalty - but that unless you are prepared to kill children, you have to decide at what age you draw the line under which you will not kill children. International law has fixed that line at 18. Currently, Somalia and the United States are the only two countries in the world that have refused to ratify that line in the sand.

He wasn't under 18 when he was supposed to be executed.

I said substantial, not overwhelming, not most. I don't think I need stats to back up (in a blog comment post)(and you're not backing up your side either) the case that a significant part of the disparity between conviction/sentencing between the non-wealthy and the wealthy is that guilty wealthy people use that advantage to get off. You really think that is not the case - or do you just want to profess ignorance to be obstinate?
I don't think I have to draw as many arbitrary lines when, unlike the remainder of "of age" responsibilities/privileges/rights, I am already spending the effort to make an individualized determination. More importantly, we already had an arbitrary line at 16. You are saying its ok to be so morally outraged at people who were ok with that line that they don't have to be counted as part of the general consensus. That is the oddity in your moral position.

TomO: Idon't think I need stats to back up (in a blog comment post) ... the case that a significant part of the disparity between conviction/sentencing between the non-wealthy and the wealthy is that guilty wealthy people use that advantage to get off.

Yes, you do. If you're making your claim based on anything other than "What I remember of what I see on the news" you do need stats to back up your claim.

(and you're not backing up your side either)

Excuse me; You're making a claim - I'm disputing it. Either you can come up with stats, or you can't. I don't think you can, especially as you've just declared you won't.

Jesurgislac:

I don't see the point in excluding the "immoral" Americans you speak of from a moral consensus on capital punishment, but by the same token, I don't see the sense in excluding people outside the United States from the evolving moral consensus. As a Canadian, it makes very good sense that American don't want me voting in their elections, just as I don't want them voting in mine, but to claim that morality and culture stop at the border seems irrational to me. And if you take into account that no other developed, democratic nation imposes capital punishment for anything short of premeditated murder, I would say that a good case for a world-wide, or at least general cultural consensus against capital punishment for either minors or for acts short of murder exists.

"And if you take into account that no other developed, democratic nation imposes capital punishment for anything short of premeditated murder, I would say that a good case for a world-wide, or at least general cultural consensus against capital punishment for either minors or for acts short of murder exists."

The alleged consensus of Europe and Canada against the death penalty is correct insofar as the elite goes, but don't try to invoke it for any kind of actual democratic principle.

In Germany polls show right around 60% support for the death penalty in the cases of murder with no mitigating circumstances cite.

In the UK a large majority of people (around 70%) support the reintroduction of the death penalty cite.

So using the state of the laws of those nations as a proxy for the moral consensus of what people believe in those nations seems suspect in this case.

Whoops, just want to be clear that the German data cuts off right about the time that they banned the death penalty (1983 I believe). I don't see any more modern data with that question.

On topic, British polls show about 30% support for death sentences for child rape. Only murder and terrorism command majority support in Britain for death sentences. As for juveniles, Britain has not hanged anyone under 18 for at least a century, and set the minimum age for execution at 18 in 1933.

In Canada capital punishment commands a bare majority of support, which it loses if the poll offers respondents life without parole as an alternative. Given the widespread support for the vindication of Steven Truscott, the last juvenile sentenced to death in Canada, I doubt support for executing juveniles or rapists goes over 10-20% here.

In any case, answers to polls asking theoretical questions about capital punishment don't always capture the actions people would take if confronted by a vote that would actually bring in a capital statute.

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