Wednesday, July 16, 2008
Dodging the Death Penalty Bullet On Child Rape
John J. Donohue III
"Over the last three decades, about 600,000 Americans have been murdered and roughly 1,100 have been executed. "
That might actually have some evidentiary value as to societal views on the subject, if it weren't the Supreme court's own efforts which caused the death penalty to be so infrequently applied.
For the record, I'm against the death penalty in these cases on a policy standpoint. But I don't think it's proper for the Supreme court to make that policy choice for everybody else, and pretend that they're just upholding the Constitution in doing so.
Since we have judicial review pursuant to Marbury, however, the 8th amendment is essentially a commitment of this question (the question being: what constitutes cruel and unusual punishment?) to the judicial branch.
I'm not sure they're the best arbiters of this question either (and Supreme Court jurisprudence on this topic sure has been murky)--but it's not clear to me that the Supreme Court is doing anything out of bounds by trying to settle the policy question the constitution asks.
Speaking of overlooking, those pointing out the fact that the Court overlooked the sentences in the defense bill seem to have overlooked the fact that the defense appropriations bill in question actually makes death the maximum sentence for all forms of rape, not just child rape.
Like Brett, I am opposed 100% to the death penalty on policy and moral grounds. And like Brett, I think the Court is just pretending that the death penalty for child rape is unconstitutional. The constitution does not prevent it. And the blog post misses the mark by focusing on the denominator instead of the numerator, for 8th amendment analysis. The issue is not whether the 99% of similarly situated criminal defendants DID NOT get the death penalty, so therefore this defendant's deaht penalty violates the constitution. The issue is whether this defendant's deaht penalty is cruel and unusual based on what this defendant was convicted of doing.
Also, you cannot seriously think that the factual error in the supreme court's opinion is a no biggie. It is a huge error, and if the tables were turned and the court had struck down child rape executions and the minority opinion contained a factual error about the status of federal law, of course us anti-death penalty folks would be jumping up and down. How can Kennedy make such a mistake? He has a fleet of highly paid law clerks. He authors what, 10 opinions a year at the most? Seriously, anyone else would be fired for such a colossal screw up, given the amount of resources at his disposal and his extremely light work load, and tons of time to do the work with no distractions of any kind to keep him from doing the work. It's incompetence and carelessness. It's a huge mistake and, rightfully so, the dissenting opinion and its author are getting bashed for making it.
As to the fourth comment.
Arbitrary application of a penalty to a select few, while others equally guilty escape, IS a constitutional problem.
Likewise, if the state and federal gov't (with interest in upholding the law) didn't raise the point, nor did the dissent, why blame Kennedy in particular? Actually, judicial opinions are known to make bigger mistakes than this apparently obscure issue.
I second the second comment as to the "policy" issue not somehow different when the 8A is involved. Likewise, long before now, only a small number of murdererers were executed. True in 1920, true now.
I posted on this over at the California NOW blog (http://canow.org), because although I agree that the death penalty is unfairly applied, and terrible in the first place, I just don't see how one can use the prevalence of child rape as a reason not to give it a harsher punishment, and it seems like that's part of your reasoning here.
If one carefully reads the dissenting opinion by Justice Alito in KENNEDY v. LOUISIANA, 2008, they will notice that it answers all of the majors concerns raised in this particular blog post. I will highlight some of them below:
The Court is willing to block the potential emergence of a national consensus in favor of permitting the death penalty for child rape because, in the end, what matters is the Court’s “own judgment” regarding “the acceptability of the death penalty.” Ante, at 24. Although the Court has much to say on this issue, most of the Court’s discussion is not pertinent to the Eighth Amendment question at hand. And once all of the Court’s irrelevant arguments are put aside, it is apparent that the Court has provided no coherent explanation for today’s decision.
The Court’s final–and, it appears, principal–justification for its holding is that murder, the only crime for which defendants have been executed since this Court’s 1976 death penalty decisions, is unique in its moral depravity and in the severity of the injury that it inflicts on the victim and the public. See ante, at 27-28. But the Court makes little attempt to defend these conclusions.
With respect to the question of moral depravity, is it really true that every person who is convicted of capital murder and sentenced to death is more morally depraved than every child rapist? Consider the following two cases. In the first, a defendant robs a convenience store and watches as his accomplice shoots the store owner. The defendant acts recklessly, but was not the triggerman and did not intend the killing. See, e.g., Tison v. Arizona, 481 U. S. 137 (1987). In the second case, a previously convicted child rapist kidnaps, repeatedly rapes, and tortures multiple child victims. Is it clear that the first defendant is more morally depraved than the second?
With respect to the question of the harm caused by the rape of child in relation to the harm caused by murder, it is certainly true that the loss of human life represents a unique harm, but that does not explain why other grievous harms are insufficient to permit a death sentence. And the Court does not take the position that no harm other than the loss of life is sufficient. The Court takes pains to limit its holding to “crimes against individual persons” and to exclude “offenses against the State,” a category that the Court stretches–without explanation–to include “drug kingpin activity.” Ante, at 26. But the Court makes no effort to explain why the harm caused by such crimes is necessarily greater than the harm caused by the rape of young children. This is puzzling in light of the Court’s acknowledgment that “[r]ape has a permanent psychological, emotional, and sometimes physical impact on the child.” Ante, at 24. As the Court aptly recognizes, “[w]e cannot dismiss the years of long anguish that must be endured by the victim of child rape.” Ibid.
The rape of any victim inflicts great injury, and “[s]ome victims are so grievously injured physically or psychologically that life is beyond repair.” Coker, 433 U. S., at 603 (opinion of Powell, J.). “The immaturity and vulnerability of a child, both physically and psychologically, adds a devastating dimension to rape that is not present when an adult is raped.” Meister, Murdering Innocence: The Constitutionality of Capital Child Rape Statutes, 45 Ariz. L. Rev. 197, 208-209 (2003). See also State v. Wilson, 96-1392, p. 6 (La. Sup. Ct. 12/13/96),685 So. 2d 1063, 1067; Broughton, “On Horror’s Head Horrors Accumulate”: A Reflective Comment on Capital Child Rape Legislation, 39 Duquesne L. Rev. 1, 38 (2000). Long-term studies show that sexual abuse is “grossly intrusive in the lives of children and is harmful to their normal psychological, emotional and sexual development in ways which no just or humane society can tolerate.” C. Bagley & K. King, Child Sexual Abuse: The Search for Healing 2 (1990).
It has been estimated that as many as 40% of 7- to 13-year-old sexual assault victims are considered “seriously disturbed.” A. Lurigio, M. Jones, & B. Smith, Child Sexual Abuse: Its Causes, Consequences, and Implications for Probation Practice, 59 Sep Fed. Probation 69, 70 (1995). Psychological problems include sudden school failure, unprovoked crying, dissociation, depression, insomnia, sleep disturbances, nightmares, feelings of guilt and inferiority, and self-destructive behavior, including an increased incidence of suicide. Meister, supra, at 209; Broughton, supra, at 38; Glazer, Child Rapists Beware! The Death Penalty and Louisiana’s Amended Aggravated Rape Statute, 25 Am. J. Crim. L. 79, 88 (1997). (KENNEDY v. LOUISIANA, 2008 )
Abu Hamza questions our focus on the ratio of the exceedingly small number of cases to receive the death penalty to the large number of child rapes that are committed. But the Supreme Court has consistently said for over 35 years that it is "cruel and unusual" to sentence someone to death when most similarly situated individuals would not receive a sentence of death--that is, it is highly unusual. This explains why a large denominator of death-eligible crimes (coupled with a very small numerator of executions) is precisely relevant to the constitutional question. As Potter Stewart wrote in 1972 in Furman v. Georgia: "These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual--they are capriciously, freakishly and wantonly imposed."
We agree with Hamza that the mistake about the 2006 revisions to federal law was embarrassing, but the error would only be relevant to Kennedy's decision to the extent that the revisions represent an expression of society's sense of the appropriate punishment for child rape. In thinking about this question, one might ponder over how many members of Congress were even aware that the revisions were in the bill they voted for. The National Defense Authorization Act of Fiscal Year 2006 is a sprawling 423-page document (http://www.dod.mil/dodgc/olc/docs/PL109-163.pdf) that authorized appropriations for military and defense programs conducted by the Department of Defense and the Department of Energy, established new military detainee policies, improved pay and benefits in the military, and made numerous other revisions to existing statues. Even the detailed House summary (http://www.govtrack.us/congress/bill.xpd?bill=h109-1815&tab=summary) of the act omits explicit discussion of the death penalty, but rather notes that the act "provides interim maximum punishments" regarding 13 sexual offenses, one of which is child rape. If one combs through section 552(b), however, the act does indeed hold that punishment for rape of an adult or rape of a child "may not exceed...death or such other punishment as a court-martial may direct" (119 STAT. 3257, 3263). (Note that the apparent attempt to authorize the death penalty for rape of an adult clearly violated the Supreme Court's 1977 decision in Coker v. Georgia--unless one deems military justice to be inapposite to normal criminal prosecutions, in which case the Kennedy oversight was appropriate.)
In the Times story, Linda Greenhouse noted that the Solicitor General's Office, which represents the federal government before the Court, "did not even file a brief, evidently having concluded that the federal government had no stake in whether Louisiana's death penalty for child rape was constitutional." The mistake--made by all the Supreme Court Justices and their clerks, the Solicitor General's Office with all their fine lawyers, and all the attorneys supporting the Louisiana statute--becomes more understandable when one considers the real possibility that virtually no one in Congress had the slightest idea that the federal statute contained this provision.
In fairness, the status quo is that about 40% of murders are never caught, and the percentage of unsolved murders has never been less than 10% in modern history. So, the number of prosecuted murders is somewhere in the 360,000-540,000 range.
Also, in all likelihood:
(1) those numbers are actually for homicides, and many homicides involve crimes other than those for which a death penalty may even be considered;
(2) many of these homicides occur in states without a death penalty;
(3) many of these homicides are committed by juveniles, mentally retarded people, or mentally ill people who are legally ineligible for the death penalty;
(4) a significant percentage of murders (particularly those death penalty worthy) involve multiple murder for which there can be at most one execution, or involve a murder who dies in a suicide by cop or suicide situation, or die in prison while awaiting execution.
No one disputes that only a small percentage (in Colorado it is less than one percent) of people convicted of a capital murder for which a death penalty could be imposed are either not sentenced to death in the first plce, or have their death sentences finally commuted prior to their death. But, the numbers aren't quite as dramatic as a comparison of murders to executions would suggest.
The murder to execution rate may be relevant to deterrence, one supposes, but standing alone, it isn't relevant to arbitrariness evaluations.
Child rapists don't deserve the mercy of Death Row and a state execution, they deserve Life in Prison without parole and special protections. This way the other inmates will have many chances to gang-rape the scum every day, and then torture the vermin to death when they are sick of him.
Finally the Supremes got one right with the DC Gun Ban issue. Hopefully, knowing that more homes may have guns, more raping and home-invading monkeys will cease in this behavior or be blown away as they well deserve. The world will be MUCH better with more of this scum dead.
absurd thought -
God of the Universe feels
sorry for child rapists
when they are murdered
in cold blood by other thugs
absurd thought -
God of the Universe says
KILL the raping monkeys
even if they prefer death
over life in prison
absurd thought -
God of the Universe says
you may not defend yourself
guns are for criminals
just hope police show in time
absurd thought -
God of the Universe says
when they kill home invaders
threatening their families
absurd thought -
God of the Universe thinks
women shouldn’t carry guns
their attackers and rapists
don’t deserve their brains blown out
Philosophy of Liberty Cartoon
Child Rapists Deserve Violent Death in Prison
Help Halt Terrorism Today!
Cheap Supra Shoes UK would probably pretty in all probability in all probability continually be probably the most the newest loved ones agent Supra Justin Bieber’s Cuttler, Supra Cuttler NS Dreary Red-colored Tennis shoes generally of which Supra Justin Bieber 2011 Cuttler by way of manner of azure leatherette incorporates a smallish, Supra Justin Bieber Cuttler NS Instructors eco-friendly Eco-friendly past due mid-top increased to get ready tired slanted decrease, smaller Supra Justin Bieber emblem, as well as being any kind of totally, faithfully, Vibram FiveFingers Sprint totally all-over Uninspiring.
HD kaliteli porno izle ve boşal.Post a Comment
Bayan porno izleme sitesi.
Bedava ve ücretsiz porno izle size gelsin.
Liseli kızların ve Türbanlı ateşli hatunların sikiş filmlerini izle.
Siyah karanlık odada porno yapan evli çift.
harika Duvar Kağıtları bunlar
tamamen ithal duvar kağıdı olanlar var