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Supreme Court Agrees to Consider Constitutionality of Death Penalty for Child Rape:

Last May, I wrote:

Yesterday, the Louisiana Supreme Court upheld the death penalty for rape of a child under 12. In Coker v. Georgia (1977), the Supreme Court held that the death penalty for rape was unconstitutional. Many commentators had interpreted the reasoning of Coker as precluding the death penalty for anything short of murder and possibly some national security offenses (treason, espionage, and the like). But Coker spoke expressly and repeatedly of rape of an adult, so the question of the death penalty for rape of a child remains open.

Yesterday's decision follows the lead of a 1996 Louisiana Supreme Court case (State v. Wilson), but Wilson decided the question in the context of a pretrial motion, and the U.S. Supreme Court understandably -- given its general preference not to review decisions before a final judgment -- refused to hear the case. The new case, State v. Kennedy, upholds a death sentence, so I suspect the Supreme Court will agree to consider the issue.

The Louisiana opinion is long and detailed, and I can't do it justice with a capsule summary; but here's a particularly interesting passage that tries to apply the U.S. Supreme Court's death penalty methodology that was developed in the recent cases having to do with the death penalty for juveniles and the mentally retarded (one paragraph break added):

Overall, it appears that approximately 30% of capital jurisdictions (15 of 38, including federal) authorize some form of non-homicide capital punishment, a showing strong enough to suggest that there may be no consensus one way or the other on whether death is an appropriate punishment for any crime which does not result in the death of the victim. However, when the direction of change is considered, clearly the direction is towards the imposition of capital punishment for non-homicide crimes. As stated earlier, the number of jurisdictions allowing the death penalty for non-homicide crimes more than doubled between 1993 and 1997.

Most important to our analysis is the fact that four states have enacted laws which capitalize child rape since Wilson, evidencing movement in the direction that this Court thought possible back in 1996 when Wilson was decided. Looked at another way, even after the Supreme Court decided in Coker that the death penalty for rape of an adult woman was unconstitutional, five states nevertheless have capitalized child rape since then, a number which the Supreme Court held in Roper was sufficient to indicate a new consensus regarding society's standards of decency towards the juvenile death penalty.

In fact, the trend is more compelling than in Roper, given the Roper Court's reliance on five states abolishing the death penalty for juveniles after Stanford held that the death penalty for juveniles was constitutional. Here, we have five states enacting the death penalty for child rape in spite of Coker, which held that the death penalty for rape of an adult was unconstitutional. Furthermore, it is likely that the ambiguity over whether Coker applies to all rape or just adult rape has left other states unsure of whether the death penalty for child rape is constitutional. These states may just be taking a "wait and see" attitude until the Supreme Court rules on the precise issue. Thus, the fact that only five states capitalize child rape should not pose an obstacle to the Court's consideration of the issue, given the direction of change, i.e, an increase of five since Coker....

[Moreover,] it can be said for child rapists as a class of offenders that, unlike the young or mentally retarded, they share no common characteristic tending to mitigate the moral culpability of their crimes. Contrary to the mentally retarded and juvenile offenders, execution of child rapists will serve the goals of deterrence and retribution just as well as execution of first-degree murderers would. Our state legislature, and this Court, have determined this category of aggravated rapist to be among those deserving of the death penalty, and, short of a first-degree murderer, we can think of no other non-homicide crime more deserving.

My suspicion proved accurate: The U.S. Supreme Court has just agreed to hear the case.

TerrencePhilip:
Well, let's see if they think "evolving standards of decency" as reflected by the legislative choices in favor of the death penalty for child rape are worthy of judicial deference . . .

It always struck me as curious that judges thought state legislative choices were in effect amending the constitution in real time-- so long as state legislatures continued moving in a direction consistent with judicial desires.
1.4.2008 6:05pm
James456345634563465 (mail):
Not to worry, the Supreme Court can always look to the views of foreign judges to tell us what our Eighth Amendment means.
1.4.2008 6:28pm
Dave N (mail):
I need to read the entire Louisiana Supreme Court decision, but the part excerpted here pretty much skewers the Supreme Court's intellectually dishonest "evolving standards" line of cases.

I agree with the Louisiana Supreme Court that I "can think of no other non-homicide crime more deserving" of the death penalty. Alas, "evolving standards" is a one-way street and I predict Louisiana's statute will be struck down.
1.4.2008 6:38pm
PLR:
From the opinion...
Contrary to the mentally retarded and juvenile offenders, execution of child rapists will serve the goals of deterrence and retribution just as well as execution of first-degree murderers would.

Must agree. Just as well.
1.4.2008 6:52pm
WHOI Jacket:
I hope they ask for my opinion.
1.4.2008 6:55pm
Alex F:
Why make a legal distinction between rapists of adults and rapists of children? I realize that most people's innate emotional "ick factor" is higher at the rape of a child than an adult, but how does one justify--intellectually and objectively--the idea that raping an adult is more moral than raping a child? For that matter I'd say that the rape of an elderly person (80+ yrs old), a paralyzed person, a severely mentally disabled person, or a multiple amputee disgusts most of us more on average than the rape of a healthy adult, perhaps as much as the rape of a child. Should we capitalize those too?

The only common thread I can find is that (on average) it seems our disgust is proportional to the perceived helplessness and/or innocence of the victim. On an emotional level we do this with other crimes too (someone who cheats lots of middle-class, elderly people out of their life savings is likely to get far less sympathy from a jury than someone who cheated a bunch of upper-class investors out of a few million bucks each), and this tendency probably often manifests itself in conviction rates and average sentence lengths, but do we codify it with any other crime? Should we codify it with this one?

Note: I'm sure someone will say, "But what about statutory rape? If we can differentiate between sex-with-adults and sex-with-children then the same should go for rape." That situation is not analogous, and if I wasn't going out tonight, I would explain in detail, but I'm sure plenty of people see the difference anyway.

Also, I am not saying that my questions above cannot be convincingly answered in the affirmative. I just can't think of any such answers myself. I am curious to hear what others think.
1.4.2008 7:41pm
MarkField (mail):
Let's be clear here: the reason there's a ban on the death penalty for rape is that the Southern states used phony rape accusations against black men as a means of racial control during segregation. Putting aside all other issues regarding the death penalty, the question is, can those states now be trusted?
1.4.2008 7:48pm
RainerK:
Would anyone be so kind and point me to the LA statute defining rape of a child.
I am under the impression that in at least some states any sex without consent is considered rape. Since children by definition cannot consent, wouldn't that expose all such deeds to capital punishment? Where is the line, where should it be? Just the arbitrary age of 12?
1.4.2008 7:50pm
another anonVCfan:

Why make a legal distinction between rapists of adults and rapists of children?

I always thought the argument was that people who rape children are especially prone to recidivism, and so need a stronger deterrent. Whether they are more recidivist is an empirical question to which I don't know the answer, but it is more than merely the "ick factor".
1.4.2008 7:53pm
wm13:
Surely the real question is what the Supreme Court of Zimbabwe thinks? You can't trust Southerners, but you can trust Zimbabwe.
1.4.2008 8:14pm
Bruce Hayden (mail) (www):
There is also the issue that society has a duty to protect its most innocent and vulnerable. And, yes, that probably also includes old women who can't protect themselves. But healthy societies have always protected their young kids from danger, far more than they do adults.

The one downside that I see (having seen CSI Miami last night) is the problem that if both child rape and homicide are capital crimes, then what is the incentive for the child rapist not to kill his victim afterwards?
1.4.2008 8:16pm
eric (mail):
I do not think that the difference between the death penalty and life in prison is big enough that the absence of the death penalty would prevent the murder of a child rape victim.

I would, personally, rather die than spend life in prison without the possibility of parole.
1.4.2008 8:23pm
josh bornstein (mail):
Eric: Although many people agree with your view that life w/o possibility of parole is worse than being executed (in the context we're talking about), many many others do not. So, I think Bruce's point still has a lot of merit. Just b/c *some* people, or most people, would not think to kill the child they've just raped, surely some would do exactly that. From a pragmatic view, it certainly would make conviction less likely if the only eyewitness were dead. It might even lead to horrific post-death measures (e.g., burning the body; burying it, etc.), to remove/reduce the risk of having authorities find physical evidence of the rape. Ugh.

A different concern: We know that a significant number of convictions for sexual assault have been--years and years later--over-turned, due to advances in forensic technology, or due to a qualified lawyer finally taking an interest in the case. If the state murders (via a death-penalty execution) the wrong person, obviously, there is no way to un-ring that bell. And what sort of compensation should be paid to that innocent man's survivors? $1,000,000? $10,000,000?? I have no idea, but the financial penalty for a state-sponsored unjustified killing would likely be pretty high.
1.4.2008 8:47pm
Steve2:

Why make a legal distinction between rapists of adults and rapists of children?


I'm inclined to say it's because SCOTUS got it wrong in Coker.
1.4.2008 9:16pm
Cornellian (mail):
Why make a legal distinction between rapists of adults and rapists of children?

For the same reason that attacking a 4 year old child is considered more morally reprehensible than attacking a 28 year old man?
1.4.2008 9:18pm
Dave N (mail):
The one downside that I see (having seen CSI Miami last night) is the problem that if both child rape and homicide are capital crimes, then what is the incentive for the child rapist not to kill his victim afterwards?
But by that logic, what is the incentive for not killing the victims of sexual assault in states withouta death penalty? I am not asking to be snarky--but rather because I don't think many pedophiles are thinking they will be caught in the first instance, which is why they would not necessarily kill their victim regardless of the penalty.
1.4.2008 9:25pm
Dave N (mail):
It appears that Louisiana differentiates between "simple rape" and "aggravated rape." The relevant Louisiana code section is found here, Louisiana Code Sections 14:41 and 14:42. However, this is not particularly helpful, since one definition of "aggravated rape" is that the victim is under the age of 12.
1.4.2008 9:45pm
Texas Lawyer:
If we allow the death penalty for crimes other than murder, where is the stopping point? In the early days of the country, the death penalty was allowed for many crimes. I don't have any cites but my recollection of old movies, but I think horse rustling used to merit the death penalty. I am fairly certain the death penalty was allowed in England for what we would consider fairly minor crimes.

Are the people who scoff at the evolving-standards-of-decency idea willing to allow the death penalty for any crime? There are lots of states out there, and some of them would allow capital punishment for lots of crimes if the Supreme Court changed the law.

I live in Houston, and I read the comments on our local paper's websites. It may not be a scientific poll, but lots of commentators want the death penalty for almost any crimes. I've seen many people demand the death penalty for drunk driving that results in a death. Is that where we want to go?
1.4.2008 10:06pm
John T. (mail):
Are the people who scoff at the evolving-standards-of-decency idea willing to allow the death penalty for any crime? There are lots of states out there, and some of them would allow capital punishment for lots of crimes if the Supreme Court changed the law.

I live in Houston, and I read the comments on our local paper's websites. It may not be a scientific poll, but lots of commentators want the death penalty for almost any crimes. I've seen many people demand the death penalty for drunk driving that results in a death. Is that where we want to go?


Whose evolving standards of decency, though, is the question, which is what the Supreme Court of Louisiana alluded to. By your own account, there seem to be states that would impose the death penalty for more offenses. Are standards of decency only allowed to evolve in one direction? I scoff at the evolving-standards-of-decency idea because it's either simply a way of codifying something that would have happened anyway, or a way for one side to short-circuit debates.

Certainly one can be a death penalty opponent and scoff at the evolving-standards-of-decency argument. Indeed, in some ways it's more principled from an individual perspective.
1.4.2008 10:22pm
Jake437 (mail):

But by that logic, what is the incentive for not killing the victims of sexual assault in states without a death penalty?


Because the prison sentence given to child molesters is generally shorter than the sentence given to murderers?
1.4.2008 10:48pm
Jmaie (mail):
In the old west, the open range was a hazardous place to be walking. Having your horse stolen could be a death sentence, hence the harsh penalty.

Of course, my source for this is also old movies, which may or may not be more reliable than Wikipedia.
1.4.2008 11:38pm
Thorley Winston (mail) (www):
Why make a legal distinction between rapists of adults and rapists of children?


I'm inclined to say it's because SCOTUS got it wrong in Coker.


I agree, when we had to read Coker in Crim Law and our professor asked our reaction the consensus was "this is bulls***."
1.5.2008 12:06am
Thorley Winston (mail) (www):
Are the people who scoff at the evolving-standards-of-decency idea willing to allow the death penalty for any crime?


I think that determining what should and should not constitute a capital offense should be determined by the democratically elected and accountable legislatures of each State rather than unelected federal judges who arbitrarily pick and chose which penalties they personally disagree with which is exactly what the "evolving-standards-of-decency" idea means and has always meant.
1.5.2008 12:22am
Alex F:
"For the same reason that attacking a 4 year old child is considered more morally reprehensible than attacking a 28 year old man?"

This doesn't answer my question. It just re-makes the assertion that I have already said I don't understand the justification for. Why is it more morally reprehensible to attack a 4 year old child rather than a 28 year old man, assuming the man is just as innocent as the child of provoking the attack (i.e. don't bring up scenarios where the man insulted the attacker beforehand or stole something from him or whatever)? Is it more reprehensible to attack a 95 year old man than a 28 year old one? How about a 55 year old? Is there a curve of moral reprehensibility that is a function of age, where reprehensibility starts high, begins decreasing at age 12, maybe is low for a while, then starts to increase again after 50 or so?

Again, assume all potential victims have done nothing to provoke attack. What about size? More morally reprehensible to attack short, skinny people than big, tall, ripped jocks? Does it matter how big and strong you yourself are? How about health? Is it more morally reprehensible to attack a blind 28 year old man than a 28 year old man with normal vision? What if you are also blind? Worse to attack a 28 year old man in a wheelchair or a male 12 year old who's 5'11'' and in great shape? A 28 year old man with severe Down's syndrome vs. a 28 year old man with low-but-functioning intelligence a la Forrest Gump?

I know what my gut feel answers would be to most of these questions, but I don't see how they are logically consistent. They're really just motivated by emotion, or perhaps a sense of fairness. But how does one attempt to codify that into law? Almost sounds like you'd have to calculate a WEAKNESS factor which, when added to the INNOCENCE factor, would sum to MORAL REPREHENSIBILITY OF ATTACKING THIS PERSON. Can we hope to write legislation that does this in a logically consistent way that doesn't turn into some sort of arbitrary "I'll know it when I see it" rule?

By the way, I do not mean to digress. The question of whether it is more morally reprehensible to attack a child vs. an adult, is different than(though potentially related to) the question of whether the law should treat child rape differently from adult rape.
1.5.2008 12:43am
Dave N (mail):
But by that logic, what is the incentive for not killing the victims of sexual assault in states without a death penalty?

Because the prison sentence given to child molesters is generally shorter than the sentence given to murderers?
In my state, albeit one with the death penalty, a sexual assault on a child causing substantial bodily harm has a sentence of life imprisonment without the possibility of parole. Even if there is not substantial bodily harm, if the victim is under 14, the there is a mandatory sentence of life imprisonment with the possibility of parole after 20 years.

So no, I don't buy, "Well the sentences are shorter" because they are not. If Louisiana abolished the death penalty tomorrow for murder, the same maximum penalty would be there for both rape of a child under 12 and for murder.
1.5.2008 12:55am
Dilan Esper (mail) (www):
What Texas Lawyer said. The best argument for striking this down is that there's no stopping point, whereas saying there has to be a death sets a pretty bright line rule.

Indeed, all you conservatives who are bashing on evolving standards of decency and unelected judges should understand that the alternative to the bright line "has to be a death rule" is actually to give MORE power to the judges you hate, because if there is no bright line test, there is going to be a thousand different answers as to what is a cruel and unusual punishment, whether "evolving standards of decency" or any other standard is used.

Prediction, 5-4 reversal.
1.5.2008 1:46am
CrazyTrain (mail):
Alas, "evolving standards" is a one-way street and I predict Louisiana's statute will be struck down.

Don't be so sure. I would not be surprised by a 6-3, or 7-2 decision affirming. Stevens and Souter will vote to strike (Stevens even implied that he likely disagrees with the Louisiana Supreme Court in an opinion concurring in denial of cert in the earlier case).

Ginsburg, however, may go along with this. In particular, I think she may be disturbed by some of the statements in the Coker decision about rape not having any long term harm on women. As a woman, I am sure she was not thrilled with 9 men deciding that. I would still bet that she votes to reverse, but would not be surprised if she went the other way.

Breyer is always a wild-card and odds are he votes to reverse. But, he may vote to affirm precisely for the reasons the La. Supreme Court identified and thus prove that the "evolving standards" test is a workable, "pragmatic" test that can in fact go against what people would think his personal preferences are.
1.5.2008 1:59am
BGates:

[A]ll you conservatives who are bashing on evolving standards of decency and unelected judges should understand that the alternative to the bright line "has to be a death rule" is actually to give MORE power to the judges you hate, because if there is no bright line test, there is going to be a thousand different answers as to what is a cruel and unusual punishment...

Why can't those thousand answers be provided by "the democratically elected and accountable legislatures of each State rather than unelected federal judges who arbitrarily pick and chose which penalties they personally disagree with," as Thorley suggested?
1.5.2008 2:14am
Ken Arromdee:
I have no idea, but the financial penalty for a state-sponsored unjustified killing would likely be pretty high.

If you leave the guy in jail for life, he dies 50 years later, and at year 55 he's discovered to be innocent, you'll face the same problem. You've still taken away the guy's life, you've just taken it away bits at a time.
1.5.2008 3:00am
Dilan Esper (mail) (www):
Why can't those thousand answers be provided by "the democratically elected and accountable legislatures of each State rather than unelected federal judges who arbitrarily pick and chose which penalties they personally disagree with," as Thorley suggested?

Because the Eighth Amendment is IN the Constitution.

Look, there's a policy argument-- I don't agree with it, but it exists-- for not having any constitutional limitation against cruel and unusual punishments, i.e., that legislatures and juries are more democratic, different states will come to different conclusions, etc.

But the text of the Constitution forecloses that conclusion. So the unelected judges you hate are going to have the power to second-guess elected legislatures on the issue of appropriate punishment.

Given that fact, again, conservatives should be more attracted to a bright line rule that says that the death penalty can only be imposed where there is a death. That, at least, prevents a multiplicity of opinions as to what cruel and unusual punishment requires.

But the idea that the courts will take no role in this matter is foreclosed by the text of the Constitution. Just like liberals should stop ignoring the Second Amendment, conservatives don't get to ignore the Eighth.
1.5.2008 5:49am
David M. Nieporent (www):
Why can't those thousand answers be provided by "the democratically elected and accountable legislatures of each State rather than unelected federal judges who arbitrarily pick and chose which penalties they personally disagree with," as Thorley suggested?

Because the Eighth Amendment is IN the Constitution.

Look, there's a policy argument-- I don't agree with it, but it exists-- for not having any constitutional limitation against cruel and unusual punishments, i.e., that legislatures and juries are more democratic, different states will come to different conclusions, etc.
But your comments are based on the erroneous premise that the death penalty is cruel and unusual punishment. It isn't (according not only to democratically elected legislatures, but to the majority of the Court).

It's one thing to say that the constitution gives the power to the Court to decide whether a particular type of punishment is C&U. It's another -- not founded anywhere in the "text of the Constitution" -- to say that once a particular type of punishment has been found not to be C&U, the Court gets to decide when it's appropriate. That's a legislative question, and it's the one faced here.

But the idea that the courts will take no role in this matter is foreclosed by the text of the Constitution. Just like liberals should stop ignoring the Second Amendment, conservatives don't get to ignore the Eighth.
To reiterate: what "ignoring"? The death penalty, according to the courts themselves, does not run afoul of the eighth amendment. End of story.
1.5.2008 7:43am
Jaynie59:
What role does justice play? Or is that a naive non-lawyer question?

In The Godfather, when the undertaker asks for justice for his raped and beaten daughter, he whispers something in the Don's ear and Don Corleone replies "That is not justice. Your daughter is still alive."

If the daughter had been 12 years old, I bet the Don's answer would have been different.
1.5.2008 9:26am
pete (mail) (www):

It may not be a scientific poll, but lots of commentators want the death penalty for almost any crimes. I've seen many people demand the death penalty for drunk driving that results in a death. Is that where we want to go?


If I thought our criminal justice system was better and more cost effectively run (not costing $1 mil+ to execute someone), I would be fine with the death penalty for drunk drivers who kill people. You might even convince me now that it is a good idea with our current system. I see the main problem with the death penalty for these types of crimes is that our current justice system is inept and inneficient, not that there is anything inherently morally wrong with executing people who commit serious crimes that either cost people's lives (drunk driving deaths, murder), do severe damage to them (rape), or potentially cost people lives (horse theft, treason, attempted murder).

If our goal is to reduce the number of child rapes and murders, then my main problem with the idea of the death penalty for child rapists is that most child abuse occurs by members of the child's family (father, stepfather, uncle, brother etc.) or by the mom's boyfriend. The families are often already very reluctanct to come forward because they do not want them to be punished and because of the other problems that occur when a family member goes to prison. The prospect of the death penalty might make them even more reluctanct to report abuse. A lot of abusers do not think that they will get caught or even that they are doing anything wrong so I am also unsure that this will be much of a deterrant for them.
1.5.2008 9:45am
Jaynie59:
If I thought our criminal justice system was better and more cost effectively run (not costing $1 mil+ to execute someone), I would be fine with the death penalty for drunk drivers who kill people. You might even convince me now that it is a good idea with our current system.



If it's unconstitutional to execute the mentally retarded and juveniles, how could it possibly be OK to execute a drunk driver?

What? Because they're sober when the execution takes place? If that were the case the all we'd have to do is wait for the juvenile to grow up and then kill them.
1.5.2008 9:57am
Peg C. (mail):
First, IANAL. I do support the death penalty (even though I live in NY) and the residual feminist in me would give the death penalty to all convicted rapists, period. Many women I know would do the same.

I would flip the switch myself on child and baby rapists. Not only are these individuals not fit to live, but they create the next generation of pedophiles, and while that creates sympathy in many it does not in me (and I majored in psych). The active pedophile destroying lives and bequeathing his sickness should be exterminated. Yes.
1.5.2008 10:37am
Jupa (mail) (www):
ugh. I don't think any crime short of homicide is worthy of the death penalty.
1.5.2008 11:07am
WHOI Jacket:
Jayne, so a drunk driver is the same as a retarded person?

Wow, the number of crimes one could commit and then plead "Your Honor, I was under the influence at the time and was not in control of my actions".
1.5.2008 12:48pm
pete (mail) (www):
"If it's unconstitutional to execute the mentally retarded and juveniles, how could it possibly be OK to execute a drunk driver?"

Because drunk drivers are adults responsible for their actions who make decisions that cost innocent people their lives (assuming they are not juvenile or retarded drunk drivers) would be my guess.

And I was talking about the morality of executing drunk drivers, not whether or not the supreme court thinks it is constitutional. Whether something is moral/just and whether it is constitutional/legal are two different issues.
1.5.2008 12:48pm
Dilan Esper (mail) (www):
But your comments are based on the erroneous premise that the death penalty is cruel and unusual punishment. It isn't (according not only to democratically elected legislatures, but to the majority of the Court).

It's one thing to say that the constitution gives the power to the Court to decide whether a particular type of punishment is C&U. It's another -- not founded anywhere in the "text of the Constitution" -- to say that once a particular type of punishment has been found not to be C&U, the Court gets to decide when it's appropriate.

That's just silly. By your position, because the death penalty is constitutional, it would be constitutional to impose it for a parking ticket.

And it is anti-textual. A punishment that is not cruel and unusual with respect to one crime can obviously be completely cruel and unusual with respect to another, lesser offense.

This is nothing more than conservatives reading a provision out of the Constitution that they don't like because it allows judges to put checks on their ability to impose draconian punishments on people.
1.5.2008 1:08pm
Steve2:

In particular, I think she may be disturbed by some of the statements in the Coker decision about rape not having any long term harm on women. As a woman, I am sure she was not thrilled with 9 men deciding that.


It isn't - and shouldn't be - necessary to be a woman to be infuriated by that fallacy in the Coker reasoning.
1.5.2008 1:25pm
Ken Arromdee:
If it's unconstitutional to execute the mentally retarded and juveniles, how could it possibly be OK to execute a drunk driver?

What? Because they're sober when the execution takes place? If that were the case the all we'd have to do is wait for the juvenile to grow up and then kill them.


Saying that the drunk driver isn't responsible because of his mental state just pushes back the responsibility to the point where he decided to drink. If he's really so drunk that he could kill someone uncontrollably, then it's his fault for getting so drunk that he could kill someone uncontrollably.

The mentally retarded and juveniles never decided to become mentally retarded or juveniles.
1.5.2008 2:05pm
David M. Nieporent (www):
That's just silly. By your position, because the death penalty is constitutional, it would be constitutional to impose it for a parking ticket.
Correct. Is any democratically elected government likely to do that? No. So I really think that it's your response that's "just silly."
And it is anti-textual. A punishment that is not cruel and unusual with respect to one crime can obviously be completely cruel and unusual with respect to another, lesser offense.
That's not at all "obvious." "Disproportionate" and "harsh" are not synonyms for "cruel and unusual."
1.5.2008 4:51pm
MarkField (mail):

Is any democratically elected government likely to do that? No. So I really think that it's your response that's "just silly."


What's silly is pretending that a constitutional provision means only what the majority thinks it means. Since you manifestly object to that in cases like Kelo, it's hard to take your argument seriously.
1.5.2008 6:20pm
Dilan Esper (mail) (www):
Correct. Is any democratically elected government likely to do that? No. So I really think that it's your response that's "just silly."

Not for parking tickets, but I could certainly see demands to apply the death penalty to an ever increasing number of crimes-- and that it happens on the federal level, overriding state choices to reject or limit the death penalty. We have already been seeing that with the federal death penalty statutes for drug dealing, something that arguably shouldn't be a crime at all.

But that's not really the point here, anyway. The point is that if a legislature DID impose the death penalty for a parking violation, common sense would say that the punishment was cruel and unusual. And yet the position you advocate rejects the obvious meaning of the words in the constitutional provision at issue.

The Constitution REQUIRES the participation of unelected judges that you decry in this situation. So the question is, how do we come up with a test that is FAITHFUL to the language of the Constitution and also draws a reasonable bright line rule.
1.5.2008 7:04pm
David M. Nieporent (www):
What's silly is pretending that a constitutional provision means only what the majority thinks it means. Since you manifestly object to that in cases like Kelo, it's hard to take your argument seriously.
At no point did I say that a constitutional provision means what the majority thinks it means; the Kelo reference doesn't even make sense. There was no question about what a "majority" thought it meant there, so I don't even know how you get that I "objected" to it in Kelo. I objected to the court replacing one word in the amendment -- "use" -- with another "benefit." You're just kind of stringing random words together there. All I said wrt parking tickets was that there's no point in discussing whether an absurd hypothetical would be constitutional, since it's absurd.


As for what a majority thinks, I don't know why you're criticizing me for thinking that this is what the 8th amendment means. The liberals on the court seems to think that this is relevant; after all, the test the court uses is "evolving standards of decency." What would "evolving standards of decency" refer to except what the majority thinks?

But that's not at all what I said; your attack is misplaced. I'm not leaving the "meaning" of the 8th amendment up to the majority. I didn't even deny that judges get to decide what is "cruel and unusual" under the 8th amendment. I said that they did decide what's cruel and unusual, and that they've held that the death penalty isn't. Once they decided that, the majority can decide the policy question -- not a constitutional question -- of when the death penalty is appropriate. Not what it means.

Now, we do disagree on the meaning of the 8th amendment, to be sure. I'm saying that it asks whether a punishment is cruel and unusual. Dilan wants to interpret it's meaning to ask whether a punishment is proportionate to the offense. But I'm not saying that my interpretation is correct because a majority thinks it is; I'm saying that my interpretation is correct because that's the best reading of the text, which doesn't say anything about proportionality.

In any case, Dilan's interpretation doesn't really resolve anything; he doesn't give us any method for determining whether a punishment is proportionate. Either it means "what a majority thinks is proportionate" or "what a judge thinks is proportionate." If the former, then criticizing me for leaving it up to the majority is wrong; if the latter -- well, it's hard to see why the latter is a reasonable approach. Judges have no special insight into proportionality. That's a moral question, not a legal one.
1.5.2008 9:58pm
MarkField (mail):

All I said wrt parking tickets was that there's no point in discussing whether an absurd hypothetical would be constitutional, since it's absurd.


Not absurd in the least. By trying to separate out the issue of proportionality as not included within the Constitutional question, you're leaving to the majority the power to decide the Constitutionality of imposing the death penalty for parking in a red zone.


the Kelo reference doesn't even make sense. There was no question about what a "majority" thought it meant there, so I don't even know how you get that I "objected" to it in Kelo.


Kelo left it up to local majorities to decide whether property could be taken for "public benefit". You believe the courts should decide that issue. All you're doing is trying to get the courts to protect the rights you think are important, while letting majority rule defend those which don't concern you.
1.5.2008 10:50pm
Dilan Esper (mail) (www):
I'm saying that it asks whether a punishment is cruel and unusual. Dilan wants to interpret it's meaning to ask whether a punishment is proportionate to the offense.

I wouldn't put it that way. To ask whether a punishment is cruel and unusual, one MUST know what it is a punishment for. A parent who grounded a teenager for six months because he once did not call his stepfather "daddy" would be imposing a punishment that was cruel and unusual. The same parent imposing the same punishment because the teenager had gotten a girl in his class pregnant after a drunken night of debauchery would not be imposing a cruel and unusual punishment.

I know that Scalia and some of his acolytes don't buy this. But this is just one of the best examples that Scalia is, despite his claims, a result-oriented judge who reads his policy preferences into the Constitution. The idea that one can decide whether a "punishment" is "cruel and unusual" without at all referencing what the punishment is FOR is absolutely silly. It is cruel and unusual to sentence someone to death for illegal parking; it is not cruel and unusual to sentence a person to death for mass murder. And the only reason Scalia espouses the rule that he does is that he believes in draconian "law and order" sentences for crimes. His position is nowhere supported in the text of the Constitution.

"Proportionality" is, however, too loaded a word for my position. The Eighth Amendment doesn't say "disproportionate". It says "cruel and unusual", which is a stricter standard.
1.5.2008 11:36pm
Jaynie59:
Saying that the drunk driver isn't responsible because of his mental state just pushes back the responsibility to the point where he decided to drink. If he's really so drunk that he could kill someone uncontrollably, then it's his fault for getting so drunk that he could kill someone uncontrollably.

The mentally retarded and juveniles never decided to become mentally retarded or juveniles.



OK, great. If there has ever been a case of a drunk who walked into a bar and asked the bartender to line up a bunch of shots because they intended to get drunk, and then go out and kill someone by driving drunk, and succeeded, then by all means give 'em the chair.

But then what about the bartender? Jeez. You'd have to kill them, too, wouldn't you?

And judging by my experience with drunks who drive, the vast majority of the time they do make it home OK. Which, to me as an atheist, is one of the few arguments for the existence of God that actually makes some kind of sense.
1.6.2008 12:51am
Harry Eagar (mail):
Dilan sez: 'The best argument for striking this down is that there's no stopping point, whereas saying there has to be a death sets a pretty bright line rule.'

Hmmm. So what about the Rosenburgs? Giving a guy like Stalin the H-bomb (so, OK, he already had it, but they thought he didn't and needed it) seems like a pretty heinous and antisocial act to me, but nobody has actually been killed by an exploding Russian H-bomb so far.
1.6.2008 10:41pm
Dilan Esper (mail) (www):
Hmmm. So what about the Rosenburgs? Giving a guy like Stalin the H-bomb (so, OK, he already had it, but they thought he didn't and needed it) seems like a pretty heinous and antisocial act to me, but nobody has actually been killed by an exploding Russian H-bomb so far.

Well, Ethel Rosenberg was apparently innocent, so she certainly should not have been executed.

As for Julius Rosenberg, I will concede that there is a longstanding tradition that treason is punishable by death. But I don't see the great argument for treating treason differently than any other serious crime that doesn't cause death. Treason's a bad thing to do, but we tend to think of long prison sentences as having substantial penological value. Is there something specific about traitors who don't kill anyone that indicates that we MUST execute them? I mean, the logic is no different from the logic of executing murderers and jailing attempted murderers.
1.7.2008 4:01pm