"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, June 25, 2008

Moving the Goalposts

It has come to pass, as I predicted here, that the SCOTUS would suddenly find that gee, a consensus towards execution of child rapists would not be evidence of "evolving community standards" such that the practice could escape being labelled cruel and unusual, and hence violative of the Eighth Amendment.

As I stated at the time of the oral argument:


Based on the quantitative score-card nature of the "reasoning" that the Court displayed in Roper v. Simmons (where they ruled that since some states had stopped executing juvenile offenders, "evolving standards of decency" forbade other states from executing juveniles), the Court should affirm Kennedy's conviction since no states used to authorize executing child rapists and now 7 states do-- a "trend" towards authorizing executing these offenders that the Court, to be consistent, should find to be as much an "evolving standard of decency" as they found the contrary trend to be with respect to permitting execution of juveniles.


Why do I get the feeling that somehow the Court's liberals and the abolition lobby will move the goalposts?


Sure enough, in today's opinion, the majority manages to conclude that despite the trend towards authorizing death for child rape, there really is no consensus, apparently because not enough states have yet enacted such statutes. Yet as the dissent points out, it's hard for a strong consensus to develop when the states know the SCOTUS is ready to nullify whatever they enact.

Of course, this squelching of any emergent consensus is necessary "because, in the end, what matters is the Court’s 'own judgment' regarding 'the acceptability of the death penalty.'"

And needless to say, the majority has all kinds of philosophical, policy reasons it doesn't like execution of child rapists... too hard on the victim, not proportionate for the offense, not a deterrent, blah, blah, blah. All very interesting, I'm sure, but of no legal or constitutional significance.

And a little more of our self-governance and liberty disappears.

1 comment:

dudleysharp said...

I wrote this prior to reading your piece. It didn't take a clairvoyant to come up with the observation.

Kennedy, child rape & the Supremes 
Dudley Sharp, Justice Matters, contact info below
 
In Kennedy v Louisiana, SCOTUS makes this blunder: "the court rested its condemnation of executing the rapists of children largely on what it described as a trend away from the use of death to punish such crimes both here and abroad."
 
Just the opposite is true.
 
The state laws imposing the death penalty option on child rape cases were relatively new and a number of states were actively considering passing such laws in their states, as well.
 
In other words, we were seeing a new trend to pass such laws, instead of a trend away from them.
 
By outlawing such new laws, it was SCOTUS that was, wrongly and intentionally, stopping a new trend. This is a horrible precedent - to use SCOTUS-speak, SCOTUS was, knowingly, stopping new laws which may become the  evolving standard and, quite possibly, preventing a national consensus towards having the death penalty for child rapists.
 
Is the newest "constitutional" guide for SCOTUS preemptive trend stopping? Maybe.
 
SCOTUS' evolving standards doctrine and the national consensus "standards" are both prone to this type of constitutional perversion - the alchemy of highly strained legal arguments derived from personal opinion.
 
In fact, the national consensus was for the death penalty for child rape cases.
 
See Jim Lindgren's, A “National Consensus” in Favor of the Death Penalty for Child Rapists"
 http://volokh.com/posts/1214447764.shtml
 
And a  July, 2008 National Poll
 
By a 55 - 38 percent margin, voters favor the death penalty for a person convicted of raping a child. Women and men are consistent in their support.
 http://www.quinnipiac.edu/x1295.xml?ReleaseID=1194
 
Another excellent example of this type of phony consensus and evolving standards doctrine improperly used by SCOTUS is this,
 
A phony 'consensus' on youthful killers
by Jeff Jacoby in a Boston Globe op/ed
 http://www.boston.com/news/globe/editorial_opinion/oped/articles/2005/03/06/a_phony_consensus_on_youthful_killers/
 
As a firm adherent to the reality that incentives matter to most people, including criminals, I was concerned that if the sanction options were equal for child rape and child murder that some rapists would be more prone to murder their victims. Therefore, I was not a proponent of the death penalty for child rape.
 
copyright 1998-2008 Dudley Sharp
Permission for distribution of this document, in whole or in part,  is approved with proper attribution.
 
Dudley Sharp, Justice Matters
e-mail  sharpjfa@aol.com,  713-622-5491,
Houston, Texas
 
Mr. Sharp has appeared on ABC, BBC, CBS, CNN, C-SPAN, FOX, NBC, NPR, PBS , VOA and many other TV and radio networks, on such programs as Nightline, The News Hour with Jim Lehrer, The O'Reilly Factor, etc., has been quoted in newspapers throughout the world and is a published author.
 
A former opponent of capital punishment, he has written and granted interviews about, testified on and debated the subject of the death penalty, extensively and internationally.
 
Pro death penalty sites 

homicidesurvivors.com/categories/Dudley%20Sharp%20-%20Justice%20Matters.aspx

www.dpinfo.com
www.cjlf.org/deathpenalty/DPinformation.htm
www.clarkprosecutor.org/html/links/dplinks.htm
www.coastda.com/archives.html
www.lexingtonprosecutor.com/death_penalty_debate.htm
www.prodeathpenalty.com
yesdeathpenalty.googlepages.com/home2   (Sweden)
www.wesleylowe.com/cp.html