"And what does the LORD require of you But to do justice, to love kindness, and to walk humbly with your God"
-- Micah 6:8

"The duty of the prosecutor is to seek justice, not merely to convict."
-- American Bar Association Standard 3-1.2(c)

"There may be a legitimate diversity of opinion even among Catholics about waging war and applying the death penalty, but not however with regard to abortion and euthanasia."
--Pope Benedict XVI, June 2004

Wednesday, May 23, 2007

Here We Go

The gauntlet has been thrown down: Georgia'sLouisiana's Supreme Court has upheld the death sentence in a non-homicide rape case, laying the groundwork for the SCOTUS to reconsider its prior ruling that death can only be meted out for crimes involving death of a victim.

Specifically with respect to rape, in Coker v. Georgia, the US Supreme Court ruled in essence:
We have concluded that a sentence of death is grossly disproportionate and excessive punishment for the crime of rape, and is therefore forbidden by the Eighth Amendment as cruel and unusual punishment.

Coker was an amazing case: Coker had "raped and then stabbed to death a young woman. Less than eight months later, Coker kidnaped and raped a second young woman. After twice raping this 16-year-old victim, he stripped her, severely beat her with a club, and dragged her into a wooded area where he left her for dead." Then, after breaking out of prison for those crimes, "[h]e promptly raped another 16-year-old woman in the presence of her husband, abducted her from her home, and threatened her with death and serious bodily harm." For this last crime, a Georgia jury sentenced Coker to death.

Justice Powell, usually portrayed as an enlightened old Virginia gentleman, breathtakingly stated of Coker's crime:
there is no indication that petitioner's offense was committed with excessive brutality or that the victim sustained serious or lasting injury.
Seriously. As if rape by definition were not a crime involving brutality and lasting injury. And therefore, Powell concluded, death was a disproportionate sentence and therefore violative of the Eighth Amendment's prohibition against cruel and unusual punishment. Et viola, the belief of the citizens of a third of the states which authorized death for the crime of rape (before Furman v. Georgia effectively negated all existing capital statutes: Georgia, North Carolina, and Louisiana had re-enacted death for rape statutes in the post-Furman era), and who disagreed with Powell that rape wasn't really that serious, were suddenly declared unconstitutional because Justice Powell could not imagine how rape could be considered so brutal and serious a crime as to justify death!

Turn the page now to Louisiana, which in 1995 enacted a statute authorizing death for the crime of aggravated rape, a narrow species of rape with specific elements of aggravation, among which are a rape in which the victim is under the age of thirteen.

According the Louisiana Supreme Court's summary in Louisiana v. Kennedy, the victim, an eight year old girl, was brutally raped by her stepfather while preparing to sell girl scout cookies in the family garage; "the victim’s predominate injury was vaginal with profuse bleeding. Her entire perineum was torn and her rectum protruded into her vagina."

The issue in the case was the identity of the peretrator. The jury concluded that the defendant had coached his stepdaughter to claim that two black males had dragged her from her garage to the yard, where they raped her. At trial, the victim testified that the defendant raped her in her room, which was consistent with the physical evidence, and that he told her to make up the story about the black men raping her.

The usual suspects in the sex offender's cheering section predict that the SCOTUS will grant cert. I agree, and, given the mushy and sorry state of Eighth Amendment jurisprudence, the robed wonders might well issue an opinion along the line of this comment on Berman's blog:
No more than seven states have the death penalty for child rape, or put another way, well over 40 jurisdictions do not. No one has been executed for child rape in at least 40 years. International consensus -- save for those countries where radical fundamentalism the rage -- is strongly opposed to the death penalty.
Amazingly, this type of drivel is what now passes for "jurisprudence" in the context of the Eighth Amendment: to be constitutional, a statute must enjoy widespread state legislative agreement, and, of course, we now look to even what the "international community" thinks is just punishment.

The good news is, on the narrow issue of compliance with Coker, Georgia's statute, dealing with rape of a very discrete and vulnerable class of victims, is clearly distinguishable from the statute nullified in Coker, which "only" protected adult females.

11 comments:

Anonymous said...

Are you seriously a prosecutor in the State of Virginia? If so it explains a lot about justice in that State. Your writing shows a total and under misunderstanding of the law, as well as your obligations as a prosecutor. You should be ashamed of yourself. I hope that at least one of your superiors recognizes the embarassment you are to hold this office and how utterly inappropriate it is for you to be writing a blog. You are supposed to be an independent representive of the Commonwealth and working towards the truth. As shown by your writing, you are merely attempting to be a mercenary. You are an embarassment to prosecutors throughout this country, as well as attorneys everywhere.

Tom McKenna said...

Oh right, I forgot that when I signed on to represent the people of the Commonwealth of Virginia I had to adopt the ACLU agenda in toto and not take extreme right wing positions like the states should be free to seek capital punishment in aggravated rape cases.

Perhaps you're confused about what a prosecutor does: we prosecute criminal cases and protect society from criminals by ensuring that criminals are punished as harshly as the facts and circumstances reasonably warrant. In the rare capital case that means we pursue the death penalty where merited. In all these endeavors, we remain true to our ethical duty to seek justice and not merely obtain a conviction.

What part of that makes you think it's improper for me to opine that the SCOTUS should uphold Georgia's democratically-enacted capital sentencing laws to punish a vicious child rapist?

Anonymous said...

It would be nice if you could get the right state, first of all. It was Louisiana. And taking any extreme position, right or left, is wrong. It would just be nice if you, as a prosecutor, decided that upholding the law was more important than convictions. But that appears to be asking too much of you.

Anonymous said...

Also, from what I have seen Virginia over charges almost every case. The fact that you are second in the nation in executions and one of the fastest states from conviction to execution says even more about the justice you metre out. If you were truly a religious mad, you would fight for social justice, not the right wing agenda.

Tom McKenna said...

Try taking a deep breath and let the blood start flowing to your brain. First, you know nothing, repeat, nothing, about how I personally practice my profession. So whether I am more concerned with "convictions" than with "upholding the law" is something you are simply guessing at.

Second, as to religion, you seem to have it mixed up in your mind that the agenda of the social left is somehow religious. I on the contrary, am content to rest in the bosom of 4,000 years of Jewish and Christian teaching that pretty plainly accords to the lawful authorities of the state the right and duty to neutralize wrongdoers and otherwise uphold the public order. And yes, that includes the (very) rare execution when warranted.

And wow, it "only" takes Virginia what, a couple of years, to execute a convicted murderer? Unbelievable; what hastiness, what speed; how can anyone possibly figure out that the case was rightly decided in just a few measly years and after multiple layers of reviewing federal and state justices and judges?

Anonymous said...

As is with most of you right wing zealots, rather than focus on the issues baseless attacks are easier. In the future in analyzing cases, at least get the state correct, it may give you at least an ounce of credibility. And I do know how you prosecute. There is this amazing thing called Lexis, where I can review every decision that is on-line to see how you practice. And it is not a pretty sight...

Tom McKenna said...

Wow, now you have me really worried; what horrible secrets of my persecution of innocent defendants will finally be exposed to the light of day by Lexis and brave Anon?

FYI, if you read the post, you'd see I referred to Louisiana throughout; the misprint in the first line was because I had Coker v. Georgia in my head; but as usual, you compassionate liberals who are so forgiving to murderers and rapists will put a conservative on the rack for not covering his mouth when he sneezes.

Anonymous said...

Again, ignoring substance and attacking rather than deal with the substance. It is nice for you to prove my point for me. Thanks.

Gritsforbreakfast said...

"the sex offender's cheering section"

Uh, do you really suppose there's one of those? He gets a lawyer who's required by oath to give a zealous defense, but other than that, a "cheering section"? That seems unlikely.

Anonymous said...

I'm not sure if this is relevant, but SCOTUS has no business deciding whether a local rape merits the death penalty or not. Frankly, if a child (ie, mine or someone else's daughter) is raped, for instance, there is no doubt that the death penalty is merited. Or perhaps, we could just castrate them. If there is a chance that the state can release a serial rapist in the future, and there is as long as a governor can pardon or commute, then such offenders should probably be put to death. Or they can choose to attack my family, and I will handle it myself and save the state some money.

J. ("Time to Kill") Grisham

athanasius said...

wow. you totally hit a nerve. makes me wonder about anon's sexual preferences and practices.

apart from that, it is entertaining, as always, to watch lawyers try to squirm away from the will of the people. Which in the instant case, would be to execute the perpetrator.