So, for those of you that don't know, scotus is an abbreviation for the Supreme Court of the United States. Don't worry if you didn't know that. I didn't know it for a long time. Also, really only two type of people use the abbreviation. People who want to sound really smart, and people who are actually smart. The way to tell the difference is that someone who wants to sound smart will act like they can't believe you didn't know what SCOTUS means, everyone knows what SCOTUS means. Those of us who are smart, will just explain it to you, because lots and lots of people don't know what it means.
Anyway, the Supremes (another way the court is referred to, mostly in legal circles, this way has always made me laugh, makes me think Diana Ross is deciding major constitutional issues), just made two fairly big decisions in recent weeks. I have been meaning to put in my two cents on the issues. One of them, I believe, is one of the biggest most foundational constitutional rights cases heard in quite some time luckily I agree with their decision, the second I disagreed heartily, but honestly am not that surprised.
First: District of Columbia v Heller. In this ruling, the supremes struck down a D.C. law that banned all handguns, including in the home, and required that rifles be dismantled or have a trigger lock on them. In this ruling the court found (for the first time) an individual right to bear arms, or own and possess guns. Gun rights, quite a contentious little thing. And the editorials and opinions have been flowing freely around this one. Why? Well, to someo extent some people just don't want anyone owning guns. They believe, extremely naively in my opinion, that if regular joe schmo citizens didn't own guns, violence would magically disappear. Some actually have disagreements with the interpretation of the second ammendment itself.
Now, I will be the first to admit, I will agree with anyone who says the second ammendment was screwed up from the start. The guys back in the day really dropped the ball on this one. Why did they feel the need for the preamble portion of this amendment? The whole crafting, from the standpoint of trying to interpret it hundreds of years later, is truly abysmal. You don't see the first amendment saying "The free exchange of ideas being necessary to keep the public informed, congress shall pass no law restricting the freedom of the press, or assembly, etc." That preamble, though not meant to control what follows (in my opinion), just screws things up.
Anyway, that aside, I agree with the outcome, I do believe the constitution was meant to give an individual right to bear arms. No, despite what some doom and gloom people say this does not make all gun control unconstitutional, there are already restrictions on every single right enumerated in the Bill of Rights. This one, I think, they got right.
Second: Kennedy v Louisiana. In this case the supremes held a LA law allowing for the death penalty for child rapists to be unconstitutional. If you are interested, the full opinion can be found here I'll warn you that in the facts section, they do have to lay out some of the facts of the crime, it isn't pretty. I read the entire thing, including dissents. I agreed with Justice Alito's dissent. I think the court got this one wrong.
6 comments:
First, let me say that I have not read the entire opinion on Kennedy v. Louisiana. Second, rape is a horrible, brutal crime, and anyone who commits such an act is deserving of severe penalty. I disagree that such a penalty should include capital punishment.
Justice Alito references an earlier court's decision in a somewhat related case:
“Life is over for the victim of the murderer; for the rape victim, life may not be nearly so happy as it was, but it is not over and normally is not beyond repair.” Id., at 598. The plurality summarized its position as follows: “We have the abiding conviction that the death penalty . . . is an excessive penalty for the rapist who, as such, does not take human life.”
I have to agree with that. We put ourselves on a slippery slope once we allow criminals to die for crimes not involving murder. Torture, aggravated assault, aggravated robbery, kidnapping, could all lead to death for the criminal. Eventually, even lesser crimes than these could expose criminals to the death penalty. Maybe not now, but it's hard to stop yourself from slipping once you are on the slope.
Rape is disgusting, sick and horrible, and child rape could be seen as even more despicable. But in these instances, life is not taken, it's altered (yes, drastically and sometimes permanently). I would rather not set the precedent of capital punishment for non-murder.
I think, first, that I have to say I really have always disliked the slippery slope argument. At the end of your post, you state clearly that you just disagree with non-murders being on the list of capital crimes, which is fine, but I don't think the slippery slope argument applies.
I think it is a logical fallacy to say that because we allow capital punishment for one crime that that inherently will make it easier for lesser crimes, even crimes that would barely get you a year in jail, such as aggravated assault, to be up for the death penalty.
Here is the problem I have with the supreme court decision. They are not asked to decide if they agree with the law. That is not there place. They are not asked if they would vote for it, or if they would use it were they a prosecutor. They are asked if it is constitutional.
According to Supreme Court precedent (not controlling, but it is at least indicative of what they see as their role), the Supremes are supposed to begin under the assumption that a law passed by a democratically elected state body is constitutional.
The question is not, do you agree with capital punishment in cases of child rape, the question is is capital punishment in cases of child rape 'cruel and unusual'.
I argued a lot in law school as to how stupid and vague those two words were, and how it basically becomes the whim of the supremes (even more so than other constitutional law). But, their own case history has set forth some ways in which they can gauge those two things.
The thing one needs to remember is to answer the question about cruel and unusual you specifically cannot look at other crimes. The question isn't is it cruel and unusual to execute someone for aggravated robbery, and I feel that if the court is even taking the slippery slope into account they are doing constitutional law a grave injustice. They must decide the question before them, not possible questions that may arise in the future.
If people feel that the death penalty for child rape is cruel and unusual, then we can agree to disagree. If the reasoning for this decision (or agreeing with this decision), is anything else: fear of this law being misapplied, fear of false convictions, fear of slippery slope, etc. et. al., then that, I believe, is missing the point.
Louisiana, or any other state has the right to pass laws that we disagree with, as long as they do not overstep the constitutional constraints laid forth by the document.
I have always, and continue to feel, that judging how many states impose a certain punishment could not possible be the end, or even the controlling factor, in deciding questions of cruel and unusual. But in this case, that seemed to be as far as the court went. Only 6 states have this punishment, therefore, that shows that the society doesn't accept it as a whole. Done with analysis, proclaim that the death penalty in non-death cases is cruel and unusual. Move on to several issues that shouldn't matter in the analysis: how difficult testifying in capital cases would be for the victim, disincentives to reporting crime, etc.
I think they botched this opinion, not just because I disagree with the outcome, though I do, but because I don't think they really did the analysis on the question asked, and then just overturned this law because death penalty for non murder crimes is cruel and unusual. I would have preferred if they would have said why, even if I disagreed.
Dan, let's agree to disagree about the merits of the slippery slope argument.
Lets look only at the question before us, which as you stated is, "[I]s capital punishment in cases of child rape 'cruel and unusual'." You have not laid forth your reasons why you believe it is not; you have only argued against the majority's methodology. I would like to hear why you believe capital punishment in cases of child rape is not cruel and unusual.
I go back to the quote I referenced in my previous post:
"“Life is over for the victim of the murderer; for the rape victim, life may not be nearly so happy as it was, but it is not over and normally is not beyond repair.”
I cannot reconcile taking the life of the rapist when no life was taken. That is the issue, I believe.
I welcome comments, and thanks for your response Dan. It's an interesting conversation, I think.
I agree with Dan on this one. The questions as to whether or not the death penalty for child rapists is ideal or appropriate are ones for legislators to answer, not for justices on the SCOTUS (Supreme Court of the United States, in case you didn't know).
The term "cruel and unusual punishment," while appearing to some to embrace some sort of evolving standard, had it's own legal meaning at the time the Constitution was drafted. While anti-death penalty types and a number of judges want us to think that this standard allows us to occasionally pat ourselves on the back for becoming more civilized by making certain punishments unconstitutional, that simply ain't the case.
While Dan is right that the founders' definition of "cruel and unusual" is difficult to define, it is not beyond some measure of definition. Help with this can be found in the opinions of both Roberts and Scalia in the recent decision of Baze v. Rees (wherein the court found that the use of lethal injection did not violate the constitution).
In short, concerns about cruel and unusual punishment, at the time of the founding, were more on whether the punishment was unnecessarily painful or, to put it better, whether the inherent purpose of the punishment (not simply a by-product) was to inflict pain. The founders cared little as to whether or not certain punishments, while not inherently cruel and unusual, were disproportionate to the crime.
The flaw in Thomas's arguments is that he hangs the entire meaning of cruel and unusual punishment on the fact that death is a disproportionate response to child rape. Kennedy had some of that in his opinion too. Aside from the fact that proportionality has nothing to do with the legal meaning of "cruel and unusual punishment," there's a logical problem. If we hang our hats on proportionality, what do we do when the crime is itself cruel and unusual? Any "proportionate" punishment in those cases would, by definition, be unconstitutional.
All that aside, if proportionality is the hallmark of constitutional punishment, I'm much more comfortable with letting a body of elected legislatures decide what is and what is not proportional than a group of five philosopher kings sitting on a court.
In the end, the Constitution itself outlines crimes that are capital crimes, none of which involve murder. It also gives the government the power to deprive a citizen of his life (or liberty, or property), subject only to the requirement that due process be provided. Numerous SCOTUS decisions, both long past and recent, have found the death penalty to be constitutional. That being the case, the determination as to what crimes it can apply to is purely a legislative one.
Frankly, I'm not going to lose any sleep knowing that child rapists won't be executed. I think there are a lot of arguments to be made regarding the propriety of the laws at issue here. But, in this case, the Court put an end to all debate on this issue, likely for all time, simply because they counted only a small number of states with laws like this.
I agree with Dan, it's ridiculous.
I'm glad Bryan got a post in on this one, it was much better laid out than mine would have been.
Like Bryan said, at the end of the day, its not that I am pushing for a change in Utah's law, or that I think child rapists should be exectuted (frankly not sure how I would come down on that were it something I could vote on), but that the court got it wrong, and this question is one for legislatures.
I would like to ditto two of Bryan's points that I think most strongly agree with my stance on the ruling.
1. That proportionality should not be the test, it doesn't make logical sense.
2. Cruel should, to be more reasonable in my opinion, be based on how the punishment is carried out (torture, pain for pain's sake, etc.), than how harsh the punishment is, i.e. 20 years for a drunk driver.
Another, non-legal, but conscience-supporting, aspect for upholding the penalty of death for child rape is an appeal to God's law given to Moses.
God allowed the death penalty for homosexuality, adultery and bestiality. None of those crimes have anything, immediately, to do with taking the life of another, yet God, in His completely civilized glory, allowed the life of those involved to be taken to punish the crime.
While this gives no illumination to the Constitutionality arguments in your discussions, it does provide a basis, for Jews, Christians and Muslims, for what kinds of punishments can be justified for crimes involving sexual morality. If God can offer death as the penalty for adultery, then wouldn't it then follow that we could also offer such a punishment for the much more heinous, and harmful, crime of child rape--without feeling squeemish about our potential lack of "civility" or proportionality? This gives weight to the argument, for believers, that we can morally uphold laws that require the death of the perp for crimes for which the Lord has already given us a pattern.
-Cory Seegmiller
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