The SCOTUS ruling this week on the death penalty for the rape of a child has set off some heated reaction in the blogosphere. (Then again, changing the flavor of ice cream sets off the blogosphere…)
In a 5-4 decision, the Supreme Court decided that the death penalty is unconstitutional in cases of child rape… unless the child dies. In fact, death of the victim is the bar set for any application of capital punishment (NY Times):
The 5-to-4 decision overturned death penalty laws in Louisiana and five other states. The only two men in the country who have been sentenced to death for the crime of child rape, both in Louisiana, will receive new sentences of life without parole.
The court went beyond the question in the case to rule out the death penalty for any individual crime — as opposed to “offenses against the state,” such as treason or espionage — “where the victim’s life was not taken.”
This blog was created as an outlet for my outrage over the rape of a child. It’s not a subject on which I’m neutral — nor even particularly moderate.
And I’m long-since on record with my thoughts on this.
There are absolutely crimes that call for the death penalty, and I disagree strongly with those who say we’re a more civilized society if we lock animals in cages for the rest of their pathetic lives. And using the 8th Amendment prohibition against cruel and unusual punishment is, imo, an obfuscation:
As a matter of constitutional analysis, the question in the case was whether the death penalty was so disproportionate to the offense as to amount to cruel and unusual punishment, in violation of the Eighth Amendment. The court’s modern precedents interpret the Eighth Amendment according to “the evolving standards of decency that mark the progress of a maturing society.”
They’re muddying the water there. “Cruel and unusual”, in my view, is not the sanction, but how it’s applied.
You could sentence someone to twenty years, but that does not define cruel and unusual. If the crime for which that person was sentenced was, say, shoplifting, then it would be disproprotionate to the offense. Conversely, if the twenty years were spent locked to the walls of a small room with sewage on the floor and guards coming to whip the prisoner daily, that would be cruel and unusual. But these concepts are not interchangeable.
Likewise, the death penalty in and of itself is not cruel and unusual… though there are applications that could be.
Having said all that, though, there is a serious problem with seeking the death penalty against a brutal beast who raped a small child: the child would likely have to testify.
I care less than nothing about the feelings of the vicious perpetrator, but the risk of causing even more damage to the young victim is enormous.
That is not an insignificant consideration, and thus — like so many things — this issue is a tough one. On the whole, though, I agree with Obama’s position on the ruling.
I disagree with the decision. I have said repeatedly that I think that the death penalty should be applied in very narrow circumstances for most egregious of crimes. I think that the rape of a small child, six or eight years old is a heinous crime, and if a state makes a decision that under narrow, limited, well-defined circumstances, the death penalty is at least potentially applicable. That does not violate our constitution.
There are crimes so heinous that the death penalty is appropriate. There is a collective societal outrage that can, and should, be expressed. Within the law. With great care for the individual’s rights within the framework of our constitution.
Whether a crime in which the victim survived — like child rape — meets my particular, personal threshold for the death penalty is not the question. The question is whether it’s a violation of our constitution.
It’s not.
“Animals.” “Brutal beasts.” It is easier to take life when you label it non-human, I suppose.
Some of us, by the way, oppose the death penalty in part because we understand that the criminal justice is flawed, and that putting the worst criminals to death will also entail killing some innocent people along the way. (Perhaps even someone you know, who will be called an “animal” on the way to his or her execution.)
Perhaps the most appalling thing about these crimes is the knowledge that they were committed by human beings – not animals acting on instinct, not unthinking “beasts,” but human beings. You’re not entitled to forget that as you snuff them out.
I wrote this post knowing you’d object to it. Lots of people probably will.
Perhaps I was wrong in using language that equates those who would commit such atrocities with animals; there is no equivalent for such depravity in the animal kingdom.
Monster stands, though.
Edited to add: The concerns about justice miscarried are valid, John. But they don’t, in and of themselves, speak to the constitutionality of capital punishment. Further — suggesting that the labels might be applied to an innocent is another obfuscation. Even when the perpetrator is unknown, s/he is still a monster.
Probably the most astute observation I have heard in years.
~EdT.
Actually, by a 5-4 vote of the Supreme Court… it is.
~EdT.
Sigh…
Yes, you’re quite right, EdT. Should have said that I don’t agree that it is — at least, not on the basis they’ve decided.
Obviously, this is a hot-button issue for you. It is for me, as well, though I choose not to go into the reasons why in writing (but will discuss them with you verbally some day if you want.)
As far as to what we call these folks, I would recommend the term “untermenschen” (German for “subhuman”.) The reason is simple: first, it expresses our true feelings as to their worthiness of continued membership in human society. Second, it is a reminder to us that we are heading down a very dangerous path, toward a place we very well may not want to go. Those who refuse to learn from history and all that…
~EdT.
Polimom,
I agree with you that this opinion was not well founded in the law. Five Justices of the Supreme court have taken it upon themselves to define what “the evolving standards of decency that mark the progress of a maturing society” are. In so doing the had to completely disempower the elected branches of government. It is the legislative and executive branches of government that must now find a way to make society function while working around this constraint. Since, despite Justice Kennedy’s assertion, society has clearly NOT decided that no crime perpetrated on a child is heinous enough to warrant the death penalty–as long as the child lives through it–that will be difficult. Of course, the court has no responsibility to help society sort it out; it will just reserve the right to veto whatever arrangement society agrees upon.
Rulings like this are what set people to talking about an Imperial judiciary. They are also why each Supreme court appointment is such a high stakes battle.
My preference would be not for a judge who agrees with me politically, but for a judge with the modesty and humility to know when a question is beyond their proper role. A judge who will therefore will toss issues back to the elected branches of government to resolve, while reserving the right to intervene only when the rights of the individual are trampled. Idealistic, no?
Sigh.
“My preference would be not for a judge who agrees with me politically, but for a judge with the modesty and humility to know when a question is beyond their proper role. A judge who will therefore will toss issues back to the elected branches of government to resolve, while reserving the right to intervene only when the rights of the individual are trampled. Idealistic, no?”
Whether one likes the decision or not, this is exactly what the Supreme Court is designed to do. I’d argue that a legislature is incapable of tackling this question; there is simply too much political and social pressure around a question like this, dealing as it does with crimes that horrify us, for anybody who’s subject to political pressure to tackle it.
I think it’s safe to say that every member of that court finds the crimes in question sickening. The reason we the Supreme Court is so that qualified people can wrestle with these questions without worrying about a “Justice Smith supports child molesters!” ad showing up next election cycle.
Polimom: I know we disagree on this, and that’s fine. My point was really just that if one is going to defend giving the state power to kill people, one had better acknowledge that they are people (however reprehensible they may be). Otherwise it becomes just a little bit easier to dig the moral implications of state-sanctioned killing.
Whoops. “duck” not “dig.” Darn words.
John — I understand what you’re saying. I truly do. Interestingly, I am probably far less harsh on (some) people who kill than I am on people who commit such horrific crimes on children.
Yes, it’s horrible that a state apparatus must carry out such a penalty — but in all honesty, it’s a vast improvement over how things were handled in the not-so-distant past. Society does recognize that some crimes cross the “heinous” threshold. I’d rather not have perpetrators torn limb from limb by a vengeful mob — however I view them.
Well, you’re touching on one of the reasons that death penalty discussions, especially about the worst crimes, are so difficult. We want vengeance and on a personal level, if somebody hurt one of my loved ones, I’d want to tear them from limb to limb myself.
Except that the point of the criminal justice system isn’t bloodlust, and what makes emotional sense for me isn’t necessarily good public policy.
Which makes all of so much more difficult.
As would I. That’s one of the real problems I have with a lot of the ‘commentary’ on the DP-related articles at the Chron – the folks there seem to be of the exact opposite mindset, and in some cases seem to be ready to ‘bring out the rope’ even before the trial has begun. That has the unfortunate effect of inflaming passions, possibly to the point that someone takes the law into his/her own hands – a situation that we all would regret (really, we would.) So, I appreciate the fact that you have chosen to de-escalate the rhetoric here (‘cuz Heaven forbid that people start thinking that this blog is the same as the Chron, m’kay? ) John is absolutely right in this instance, it is essential that we avoid de-humanizing those we wish to punish, and it is also important to keep in mind that we are punishing the action (in other words, the person committed a monstrous act – that does not make them a monster. And, I feel I am certainly qualified to make such a statement in this instance.)
Ultimately, the Supreme Court is the body with the final decision as to whether or not a law or regulation passes constitutional muster. In this case, they decided that it didn’t. And, I suspect the part of their ruling where they
was in fact intended to put some bounds on the proscription, so as to rule out similar appeals in such cases. I suspect that, if We the People still feel that the death penalty is appropriate in such cases, that We the People can and will choose to amend the Constitution to make it allowable (though I personally hope they don’t.)
~EdT.
Taking the rhetoric down a notch is a skill I wish more people had — because you’re absolutely right about those chron commenters. Downright crazy-sounding, they are. And they don’t have to be talking about the DP, either.
That said… toning it down (because this is, after all, a moderate blog) doesn’t change my feelings about it. Do I think of every rapist as subhuman or monstrous? No. But the two Louisiana cases that this ruling will affect were beyond the pale. Their victims weren’t just violated, they were physically torn apart. Surgery required. Major, permanent damage — and that’s not even touching the psychological fall-out.
I don’t generally get into details on things like this. They make me ill. But there are degrees and levels that make distinctions valid, imho.