April 17, 2008

"Scalia almost chortles. "Did you ever hear the expression 'hoist by your own petard?'"

Dahlia Lithwick describes the oral argument in Kennedy v. Louisiana, the case about the constitutionality of imposing the death penalty for the rape of a child:
[Jeff] Fisher, Kennedy's lawyer, gamely opens with the observation that Louisiana's effort to "reintroduce" the death penalty for rapists violates the "long-standing national consensus against it." It also offends a line of cases that require states to very narrowly define the class of offenders eligible for the death penalty. Justice Antonin Scalia interrupts him to ask how one might further narrow a class of "child rapists" and whether any rape of a child under 12 could fairly be described as not "particularly heinous."...

Fisher says that if you look at the pair of recent cases that banned capital punishment for mentally retarded offenders (in 2002) and juvenile offenders (in 2005), it's clear the social consensus is trending away from the death penalty. Then, Roberts jumps in to argue that the "evolving standards of decency" test should not be a one-way ratchet. Does this trend "only work one way?" he asks. "How are you ever supposed to get consensus moving in the opposite direction? … Do 20 states have to get together and do it at the same time?"

Scalia says this high bar against reversing the prevailing trend would put the court in the position of "prohibiting the people from changing their mind." And Roberts says the clear trend that matters is not the one Fisher points to but rather that "more and more states are passing statutes imposing the death penalty in situations that do not result in death." Scalia almost chortles. "Did you ever hear the expression 'hoist by your own petard?' The trend here is clearly in the direction of permitting more and more … capital punishment for this crime!"
But there is very little to laugh about here. As Lithwick notes, the rape for which Kennedy received the death penalty was truly horrible. Kennedy weighed 300 pounds and the child was 8.

I'm glad to see that Justices Alito and Ginsburg brought up the feminist themes that I noted in this earlier post on the case. Lithwick writes:
Justice Samuel Alito quotes a line from [the 1977 precedent] Coker opining that "life is over for the victim of the murderer. For the rape victim, life may not be nearly so happy as it was." He asks, incredulously, is that "something that would be written today?" Ginsburg adds that the attitudes toward rape that animated Coker—that women were the property of their husbands or fathers and were "spoiled" after a rape—have "no parallel with child rape." There was a lot of race and gender bias under the surface of the Coker case that isn't immediately present in this one.

71 comments:

Nichevo said...

Moral of the story: Next time, don't bring him in alive. This is what the judges are telling us: Anything you let us touch will become a horrible mess. Stay out of the courts!

Don't think we are not listening.

B said...

After reading everything of Lithwick that I could over the last 21/2 months, I have come to the conclusion that she is an extremely talented waste of life.

Smilin' Jack said...

The problem is that the courts and law enforecement generally are government agencies, and function with the effectiveness and reliability we have come to expect from government agencies. Giving those clowns the power of life and death should scare anybody. How many rape convictions have been overturned in the past few years, as DNA technology has advanced?

rhhardin said...

chortles

Guys can abstract from any detail whatsoever.

Women can't. That's how they inherited the That's Not Funny! stereotype.

Simon said...

I thought that the most important point came just a few minutes in, from the Chief: the problem of the one-way ratchet represented by the court's recent death penalty jurisprudence. If we are to take seriously that the court is moved by "the consistency of the direction of change," as Atkins-Roper held, it ought to go the other way, too. But how can such a trend get going when the court strikes down outlier practices as unconstitutional? It creates a liberal ratchet, where states abandon a practice at the peril of never being able to go back later should it become necessary. The Chief's Baze plurality is as good an attempt as anyone's made to cohere the court's jurisprudence on the death penalty, but ultimately, I think there are good normative reasons - quite aside from from whether one agrees with originalism vel non - to think that the whole thrust of the court's approach to the 8th amendment is misguided and destructive.

IMO, the best result in Kennedy (although I don't for a minute suppose they'll do this) would be to overrule Coker and allow the states to decide for themselves whether rape - or any other heinous felony - warrants the death penalty, provided adequate procedural safeguards are enforced to ensure that the innocent are protected. The time of the federal courts is a scarce resource, and it is more efficiently used to protect the innocent, not to accommodate the guilty. As with Medellin, there's no serious question of Kennedy's guilt, and, in my view, so long as the state complies with Baze as to method, the federal interest is at an end.

J said...

"The national consensus has recently been to limit rather than expand the death penalty"

Even if true (and I'm pretty sure it isn't), what's that got to do with whether it's legal or not?

John K. said...

"As Lithwick notes, the rape for which Kennedy received the death penalty was truly horrible. Kennedy weighed 300 pounds and the child was 8."

This fact situation put me in mind of these words of wisdom from A.E. Housman's A Shropshire Lad:

SHOT? so quick, so clean an ending?
Oh that was right, lad, that was brave:
Yours was not an ill for mending,
’Twas best to take it to the grave.

Oh you had forethought, you could reason,
And saw your road and where it led,
And early wise and brave in season
Put the pistol to your head.

Oh soon, and better so than later
After long disgrace and scorn,
You shot dead the household traitor,
The soul that should not have been born.

Right you guessed the rising morrow
And scorned to tread the mire you must:
Dust ’s your wages, son of sorrow,
But men may come to worse than dust.

Souls undone, undoing others,—
Long time since the tale began.
You would not live to wrong your brothers:
Oh lad, you died as fits a man.

Now to your grave shall friend and stranger
With ruth and some with envy come:
Undishonoured, clear of danger,
Clean of guilt, pass hence and home.

Turn safe to rest, no dreams, no waking;
And here, man, here ’s the wreath I ’ve made
’Tis not a gift that ’s worth the taking,
But wear it and it will not fade.

P. Rich said...

Maybe we should embrace "cruel and unusual" in certain cases, such as the precursor to this SCOTUS debate. The Chinese invented death of a thousand cuts. Some extended modern version of this sounds about right to me. The death penalty as now carried out is much too quick and painless for those who have proven beyond a reasonable doubt that they no longer deserve to be treated as human. Schmucks who are emotionally addicted to the "criminals are just victims and deserve our compassion" BS will of course disagree.

Zeb Quinn said...

Giving those clowns the power of life and death should scare anybody.

There is the very essence of my opposition to the death penalty.

Plus the fact that with the confluence of laws on the subject, it really isn't possible for a jurisdiction in the US to carry out the death penalty in both a fair AND effective way. So why do it? Is capital punishment Constitutional? Of course, that's been settled. But that doesn't therefore mean that capital punishment must be the law. We are free to reject it. Every time it has come up for a vote where I live (twice in 32 years) I've voted against it.

Simon said...

Zeb said...
"[I]t really isn't possible for a jurisdiction in the US to carry out the death penalty in both a fair AND effective way...."

What's your argument for this proposition?

rhhardin said...

Stop the presses! Breaking Central Ohio news, ``Ohio teacher refuses to remove Bible from his desk.''

Just to remind you that the Pope hasn't taken them in.

Freder Frederson said...

Plus the fact that with the confluence of laws on the subject, it really isn't possible for a jurisdiction in the US to carry out the death penalty in both a fair AND effective way.

Actually it is. In those jurisdictions the death penalty is rarely ever used. Kansas is an excellent example. There is a team of public defenders assigned by the state (not on a local level) to handle capital cases. As a result only the most heinous and deserving cases are brought.

I might not be so uncomfortable with the death penalty if it was handled this way everywhere. But the sad truth is, contrary to Simon's belief that "adequate procedural safeguards are enforced to ensure that the innocent are protected," they simply are not, nor is the death penalty charged fairly. The vast majority of executions are carried out on poor people who had lousy or completely overwhelmed lawyers. If you can afford a decent lawyer, you probably don't have to worry about the death penalty unless your crime is one that raises to the level of national noteriety.

The time of the federal courts is a scarce resource, and it is more efficiently used to protect the innocent, not to accommodate the guilty.

When you are talking about life and death or someone's freedom, efficiency is not a consideration.

Simon said...

rhhardin said...
"Stop the presses! Breaking Central Ohio news, Ohio teacher refuses to remove Bible from his desk."

Details here. Well, the School District says that "they ... are required by the U.S. Constitution not to promote or favor any set of religious beliefs"; quite so, but what does that have to do with whether a teacher has a Bible on his desk? My grasp of the court's religion clause doctrine is quite thin, but approaching the matter commonsensically, which I realize has not been a hallmark of the court's decisions in this area, I would think that the question here is whether a reasonable person would construe a Bible on a teacher's desk - a teacher, mind you, not the desk of every teacher in the school - that as being an endorsement of religion by the government, rather than reflecting the teacher's own proclivities. Most teachers have pictures of their children on their desk, and no one would argue that the school district endorses the depicted children; many teachers have things in their classroom that are meaningful to them but that no one would infer the school district endorsed (illustrative is the case pending in the Eastern District of Wisconsin about religious suppression in art class, the name of which escapes me). If the teacher wore a tie with a cross on it, or a lapel pin, or a crucifix, or a St. Christopher, for that matter, would that constitute an enfringement of the establishment clause?

Zeb Quinn said...

What's your argument for this proposition?

Procedure, ad nauseum. 10 years and counting for Kennedy. 15 or more years is not unusual. Justice delayed is justice denied. But we've got to be sure that we are correct in this judgment, no? Okay. We can't be swift and sure AND give the defendant all the procedural rights we must give him. These two principles cannot coexist.

Caveman Carl said...

Is there any reason, pray tell, that child rape need be a complicated subject?

freelunch said...

I wonder who lives longer on average: a child rapist on death row or a child rapist who was given life in prison?

Simon said...

Zeb Quinn said...
"[What's my argument for the proposition that isn't not possible for a U.S. jurisdiction to carry out the death penalty in both a fair AND effective way is p]rocedure, ad nauseum. 10 years and counting for Kennedy. 15 or more years is not unusual. Justice delayed is justice denied. But we've got to be sure that we are correct in this judgment, no? Okay. We can't be swift and sure AND give the defendant all the procedural rights we must give him. These two principles cannot coexist."

Well, you're assuming the answer. You're assuming that if we don't execute someone swiftly, that's unfair so we can't do so at all. That's faulty unless you're going to buy into the idea floated by Justices Stevens and Breyer in their dissents from denial of cert in the Elledge and Knight cases, viz. that it's cruel and unusual punishment to keep someone on death row for years and years. And to both them and to you, the obvious rejoinder is that it's a bootstrap argument: the reason it takes twenty years to execute a person is because he keeps filing appeals! After the sentence is handed down by a state court, you have at least one level of direct appellate review. But then he appeals to the state supreme court. Then he appeals to the U.S. Supreme Court (that's the procedural posture of the Kennedy case). If they reject cert, he moves to state collateral litigation, and when those are exhausted, ultimately, to federal habeas procedings.

When you say that "[w]e can't be swift and sure AND give the defendant all the procedural rights we must give him," that seems like quite the conundrum: you're basically arguing, it seems to me, that the prisoner will be treated unfairly because we insist on treating his post-conviction claims fairly. It's not so much that the two principles can't co-exist, it's that the prisoner can't have it both ways.

There are many contexts in which justice delayed is justice denied, but it seems to me that post-conviction litigation over whether the sentence shall be death or life in prison (still less by which method execution will be carried out) is not one of them. What exactly is lost that ought to have been retained?

TMink said...

Freelunch, I was wondering that myself.

Trey

Simon said...

Put another way, Zeb, I'm saying that "justice delayed is only justice denied" in the context of post-conviction procedings when the time taken to litigate the claims fully will likely be greater than the actual sentence. But when the options are death or life in jail, protracting the litigation and thus delaying the execution can only have the effect of the prisoner remaining in exactly the situation his litigation hopes to produce: in jail, alive. So where's the injustice -- to the prisoner, at any rate; let's not even start on justice to the victims and their families, or the public interest, which ought to be weighed, too -- in the delay?

rcocean said...

"Is there any reason, pray tell, that child rape need be a complicated subject?"

Lawyers need to eat (and drive BMW's) Caveman. How can they make a living except by making the simple complex?

former law student said...

I was trying to think if the death penalty made sense for crimes other than murder. The principle of punishment seems to be that it must exceed the crime to truly punish: convicted thieves are not sentenced merely to make restitution, but they are deprived of liberty for a time as well. Murder is the only crime where the highest possible punishment is restitution, i.e. if you take a life, society takes yours as well.

Can any amount of prison time truly punish a child rapist? Sentenced to prison for rape, the 300 pound step dad likely would be raped in his turn, but that would not be an acknowledged part of his punishment. Nor would he be a girl of tender years when it happened.

So I don't know.

j: the question is does the death penalty for child rape violate the Eighth Amendment prohibition of cruel and unusual punishment as applied to the states via the Fourteenth Amendment. Part of making the cruel and unusual determination is looking at what states currently do and why. Punishments that were common in colonial times are no longer adminstered to the point that flogging, for example, would be considered cruel and unusual today.

former law student said...

Retribution, not restitution. And simon, punishment is not the private vengeance of the victim and her family, but retribution for the harm done to society -- the criminal has torn a hole in society's fabric, and society demands that he restore it.

vnjagvet said...

I second Freder's point.

Believe it or not, the Kansas procedure is similar to the requirements of the Uniform Code of Military Justice, which requires special procedures for capital cases, including specially qualified appointed counsel, a specially qualified tiral judge, and heightened requirements for verdict (unanimity vs. 2/3 vote).

IMO, capital punishment should never be rendered without providing the accused with highly skilled counsel. Unless the state is willing to pay the price for securing that basic right, it should not be permitted to take a life.

rhhardin said...

You can't have a trial at all unless the conviction is in spite of the best possible defense, which you therefore want.

But the procedures can be hijacked so that the best possible defense needn't be very good at all, to work.

Jeremy said...

vnjag-
Highly Skilled Lawyer? What is that? Harvard and Yale Law School graduates only? Would there be some kind of Bar Exam II for the really skilled lawyers? Lawyers that have represented at least one celebrity criminal?

Does the 6th ammendment give the right "to have the Assistance of (Highly Skilled) Counsel?"

Sometimes the prosecution gets Marcia Clark, sometimes the defendence.

Simon said...
This comment has been removed by the author.
freelunch said...

If you want to impose the death penalty and you want it to be imposed within a year or two after the trial, you need to take Gideon seriously. From my point of view, that implies that anyone planning to impose the death penalty needs to be providing the defendant with adequate money for a lawyer who has the time and the resources to provide a high-quality defense.

Courts appear to be spending so much time reviewing the work because it has been clear that many jurisdictions don't make any serious effort to comply with Gideon, not even in capital cases. We've seen what happens in capital cases when the accused has adequate resources. We've also seen what happens when the public defender has too many cases and too little time.

Of course, this mockery of Gideon isn't limited to capital cases. If we freed all the defendants whose publicly provided counsel had inadequate resources available to defend them properly, there would be no overcrowded prisons in the US. The difference is that the courts take miscarriage of justice more seriously when the case is a death penalty case.

Zeb Quinn said...

You're assuming that if we don't execute someone swiftly, that's unfair so we can't do so at all. That's faulty unless you're going to buy into the idea floated by Justices Stevens and Breyer in their dissents from denial of cert in the Elledge and Knight cases, viz. that it's cruel and unusual punishment to keep someone on death row for years and years

Two things. First, I never said it was "unfair" per se to not execute someone swiftly. I said it was not effective. By the time it happens, if it happens, it's so remote in time, 10, 15, or 20 years later, any connection to the crime has been bleached out of the whole thing. By then it's a cold and clinical exercize. Besides, behavioral psychologists are clear that for any punishment to be the basis for learning, to be effective as a deterrent, it must at a minimum be swift and certain. That's been long since bleached out too. Bottom line: for me it has to be at least somewhat relatively contemporaneous to be meaningful. The way the death penalty is by necessity carried out it has no meaning. And, by the by, if you think about that concept in the abstract it becomes a little bit ghoulish in a Star Trek kind of way.

Second, don't equate this to some kind of an 8th amendment cruel and unusual punishment argument I'm making here. I'm not saying it's unconstitutional. My argument is a practical and political one.

Simon said...

former law student said...
"Sentenced to prison for rape, the 300 pound step dad likely would be raped in his turn, but that would not be an acknowledged part of his punishment."

And for that reason, in my view, should not be accepted or tolerated.


"And simon, punishment is not the private vengeance of the victim and her family, but retribution for the harm done to society -- the criminal has torn a hole in society's fabric, and society demands that he restore it."

That's one aspect of it, but I don't think it's the only valid penological concern. Part of the social contract, it seems to me, is that we assign our legitimate individual claims for retribution against those who wrong us to the state at large, with the understa

vnjagvet said...
"IMO, capital punishment should never be rendered without providing the accused with highly skilled counsel. Unless the state is willing to pay the price for securing that basic right, it should not be permitted to take a life."

I don't disagree, as a matter of best policy (indeed, I would go further: as I've said before, I would abolish the death penalty entirely (thinking the miscarriage of justice problem to be serious, real, and intractable, "I'm a reluctant fellow-traveller with the 'one mistake is too many' crowd")), but I don't think that the Constitution requires that policy.

kimsch said...

How many rape convictions have been overturned in the past few years, as DNA technology has advanced?

One reason that prosecutors have some discretion as to whether to seek the death penalty or not. See California's "special circumstances" leading to a death sentence. The crime would have to rise to meet certain criteria.

Simon said...

Zeb Quinn said...
"First, I never said it was 'unfair' per se to not execute someone swiftly. I said it was not effective."

Specifically, you said that it "isn't possible for a jurisdiction in the US to carry out the death penalty in both a fair AND effective way."

"By the time it happens, if it happens, it's so remote in time, 10, 15, or 20 years later, any connection to the crime has been bleached out of the whole thing. By then it's a cold and clinical exercize. Besides, behavioral psychologists are clear that for any punishment to be the basis for learning, to be effective as a deterrent, it must at a minimum be swift and certain. That's been long since bleached out too. Bottom line: for me it has to be at least somewhat relatively contemporaneous to be meaningful. The way the death penalty is by necessity carried out it has no meaning."

Even setting aside the point above that the delay is the product of the prisoner's choices rather than some defect in the justice system ("[i]t is human nature to ascribe the consequences of one's personal choices or one's personal shortcomings to malevolent or insensitive others, to unjust social institutions or practices, or to 'the system.'" Posner, The Federal Courts 17 n.22 (1996)), you're assuming the answer. You're assuming that the only valid penological goal served by the death penalty is deterrence, and because lengthy delays assertedly vitiate the deterrent effect, therefore the death penalty doesn't serve any valid purpose.

Well. First, that uncoupling is an assertion, not a fact. Second, even if we agreed that lengthy delays made the death penalty unsound, it wouldn't follow that the only logical solution is to abolish the death penalty; there are a number of institutional approaches we could take that would dramatically reduce the length of time it takes. Death penalty cases could be fast-tracked through a purpose-designed appeals system, for example, and a special subject-matter specific federal court could hear and dispose of habeas suits from state prisoners.

And third, in all events, deterrence is not the only legitimate penological goal served by the death penalty. It may be the only valid penological goal that liberal thought admits, but that is a very shallow pond in which to swim. It seems to me, and I think it seems to ordinary Americans at large, that justice is a valid penological concern. I don't think it will deprive Kennedy's execution of all meaning if it fails to deter child rape. I don't think 9/11 deprives Tim McVeigh's execution of meaning because it failed to deter terrorism. Simply put, Zeb, there's a reason why it's called capital punishment.

James Pawlak said...

Where in the Constitution is there a statement about "evolving standards of decency"? It seems to be missing from my copy!

If I recall correctly, no/short drop hanging and musketry were the approved methods of execution at the time the Constitution and Bill of Rights were confirmed.

Paul Zrimsek said...

Where in the Constitution is there a statement about "evolving standards of decency"?

I don't know, but I note that by the end of the article Lithwick has dropped even the pretense that the standards in question are those of society at large. Only judges matter.

former law student said...

Where in the Constitution is there a statement about "evolving standards of decency"?

The deliberate choice of the words "cruel and unusual" instead of spelling out which methods were acceptable. A Clintonista could similarly ask how fibbing about having sex constituted a "high crime or misdemeanor." These are deliberately elastic terms.

Zeb Quinn said...

Simply put, Zeb, there's a reason why it's called capital punishment.

I don't have to like it, and I don't, and you can't make me either. The death penalty, especially the way it's now done, is flat-out weird. High-sounding legal arguments about it in an effort to justify it just makes it even weirder to me. I said before in an earler thread, it's not a big deal to me. I just don't like it. And I vote against it whenever it shows up on the ballot.

IIRC Timothy McVeigh gave up on his rights. He submitted.

Simon said...

James Pawlak said...
"Where in the Constitution is there a statement about 'evolving standards of decency'? It seems to be missing from my copy!"

Where in the Constitution is there a statemen about "separation of powers"? It seems to be missing from my copy. So, too, is the authorization for the federal government to operate a printing press, so I suppose the GPO is unconstitutional too. Come to think of it, I don't see anything about federalism or soverign immunity in the Constitution. Point is, there are a lot of things that aren't explicitly stated in the Constitution but that follow inferentially from what is explicitly there.

As FLS said above, the Constitution forbids "cruel and unusual punishments"; what that means can be subject to disagreement and competing understandings by reasonable people. I suspect that FLS and I disagree on how it ought to be understood, but the idea that the clause should draw its content dynamically from what American society believes to be cruel and unusual goes back to Weems, almost a century ago, although the "evolving standards of decency" language comes from dicta in a mid-century case called Trop v. Dulles. You don't have to agree with it, but to make out that it's as simple as asking if there's a clear statement in the Constitution is reductive, and to insist that our accreted traditions and longstanding practices be thrown out overnight because you have discovered The Correct Answer is the antithesis of conservatism.

Skyler said...

How many rape convictions have been overturned in the past few years, as DNA technology has advanced?

This is why the death penalty is even more appropriate now. DNA technology can remove almost all doubt as to the identity of the rapist. The only remaining question would be whether the intercourse was consensual or not. With a minor, this is not at issue, thus DNA technology removes any remaining fetters that would bind us from imposing a most appropriate punishment.

DNA technology should increase, not decrease the number of executions and no one should be sorry for that. We will know of the guilt of the executed without exception and we will know that they deserve death.

rhhardin said...

How many rape convictions have been overturned in the past few years, as DNA technology has advanced

People realize that sometimes they have to take one for the team.

blake said...

Shorter Skyler: "Yes, we've screwed up many times in the past, but now we're really, really sure."

Heh.

Giving those clowns the power of life and death should scare anybody.

Meh. Too late. The judicial system itself is the power of life and death.

And that's just the tip of the iceberg.

Skyler said...

". . .but now we're really, really sure."

Yes, as a matter of fact, we are.

Once you remove the question of guilt, that is, once you know without any doubt at all that someone is guilty, how can you not support their being executed?

What part of you would have any sympathy at all for a pig that rapes an 8 year old? If you do have any such sympathies, I would kindly require that you stay away from my daughter.

P. Rich said...

Skyler said:

How many rape convictions have been overturned in the past few years, as DNA technology has advanced?

This is why the death penalty is even more appropriate now.

>>>

Yes. The principal technical argument against the death penalty seems to be 20 years out of date. To argue that "XYZ was wrongly convicted and sentenced to death because we didn't have DNA testing [then], and therefore we should do away with the death penalty [now]." is, to be blunt, a really stupid position.

MarkW said...

The rape was obviously horrible and will undoubtedly have created lasting psychological damage. But more so than, say, a horrific beating that left the child's face permanently disfigured? Or in a wheelchair?

We would not allow the death penalty in those cases and we shouldn't for rape either.

Revenant said...

We would not allow the death penalty in those cases and we shouldn't for rape either.

I suspect that if you proposed a law calling for the death penalty for people who deliberately mutilate children it would pass easily.

Revenant said...

Shorter Skyler: "Yes, we've screwed up many times in the past, but now we're really, really sure."

I kind of have to side with Skyler on this one. Ok, so a certain number of people have had their DNA tested against rapist's genetic material and been cleared when it didn't match. But what about when it does match? Once you have confirmed that, yes, it really WAS the accused's semen inside the child's vagina or anus, where's the remaining room for doubt?

The original HIV blood tests gave a lot of false positives, so a lot of people were originally told they had HIV when in fact they did not. Furthermore, a lot of "tainted" blood donations were discarded by blood banks that shouldn't have been discarded. Today, our tests are better, and we can identify that some of those people weren't really HIV+ and some of that blood was ok. Is our next logical step really to say "oh, we've been wrong so many times in the past -- we shouldn't discard blood we think is infected"? It seems to me that that's a crazy position to take. The fact that the tests have improved makes it that much more important to discard the blood that tests positive today.

Simon said...

MarkW said...
"The rape was obviously horrible and will undoubtedly have created lasting psychological damage. But more so than, say, a horrific beating that left the child's face permanently disfigured? Or in a wheelchair? We would not allow the death penalty in those cases and we shouldn't for rape either."

Like Zeb, you're assuming the answer. Even assuming that you're right, that there's no material distinction between sexual violence against children vs. other violence against children, who's this "we" who wouldn't allow it? Liberals wouldn't, but not everyone is a liberal. As Rev said, it's by no means clear that a law punishing mutilation of children (or some other kind of aggravated violence) with the death penalty would violate the evolving standards of decency of the average American. Liberals get this idea into their heads that if they and all their friends think something shocks the conscience, they are somehow channeling America at large.

Cedarford said...

It creates a liberal ratchet, where states abandon a practice at the peril of never being able to go back later should it become necessary.

That has become a big problem. The liberal mindset is that society must change to give terrorists, criminals, welfare mootches, and illegals more rights. But once those "rights" are given, they make the argument that the liberal ratchet is in effect - that those "rights" once given, cannot be "ripped away".
SCOTUS is wise to challenge the conventional wisdom of the one-way liberal ratchet of irrevocable rights..

****************
The other problem is the shift from swift and sure justice as the prevailing meme was altered by the lawyer community to a Talmudic one of endless debate, appeals, due process trivialities (and endless lawyer fees). Then to the argument that under the Talmudic approach to law, most penalties are ineffective and ought to be done away with as failing to deter -because the uncertianty of guilt or just sentence stretches out many years, even decades.

John K. said...

"The rape was obviously horrible and will undoubtedly have created lasting psychological damage.But more so than, say, a horrific beating that left the child's face permanently disfigured? Or in a wheelchair? We would not allow the death penalty in those cases and we shouldn't for rape either."

I like the idea that prisoners should be forced to pay restitution for all the harm they've caused by working in prison, as well as the cost of their incarceration. If they don't work and they don't pay, they don't eat and they starve. This round-about slow kind of death penalty would address the concern people have that the death penalty is too quick and painless relative to the suffering caused by certain horrific crimes. If they've caused damage of the enormity in the examples given and have to make payments that would allow them to pay off their debt before they die, they're probably only going to be able to afford bread and water and vitamins.

Charitable persons and groups would be allowed to help feed and cloth certain hard cases or help pay off part of their debts. I'm sure they'd think carefully about who was deserving of their charity.

For wealthy criminals or those with the skills or ability to earn substantial income in prison (the Eliot Spitzers of the world) we'd have to find an equitable way or basis upon which to secure full financial restitution to the victim but also to ensure that wealthy criminals aren't able to simply buy their way out of prison -- relative to poorer or less educated people who have committed similar crimes.

The combination of prison labor -- which would have rehabilitative effects -- and a bread and water diet (for some criminals) would keep prison from being the holiday for thugs that it is for so many career criminals, which I presume is a major underlying objection people have to merely incarcerating murderers and rapists for life rather than executing them.

Revenant said...

What sets rape apart from other adult-on-child violence is that you can't accidentally rape an 8-year-old. You can accidentally mutilate, emotionally scar, or even kill an 8-year-old, but you can't accidentally commit rape of one. That is why so many people are comfortable with applying a death penalty to child rape -- there is no possible excuse for it. Even severe beatings can have an explanation, even if it isn't one we accept as a valid excuse. Plenty of people have *felt* like beating the dickens out of an especially bratty and obnoxious child. But who, aside from a few true sickos, even dreams of raping one?

That's why people sign on for the death penalty. They instinctively understand that the kind of person who could commit that sort of crime is the kind of person who needs to be killed.

vnjagvet said...

Jeremy:

I am not arguing that the requirement for "highly skilled" counsel is a Constitutional requirement. I am arguing that as a matter of policy, it should be provided. In Kansas, that is met by a squad of attorneys experienced in difficult cases, as it is in the military services.

In Britain, all criminal defendants in felony cases are represented by barristers of equal experience, skill and ability as the prosecuting attorneys. Queen's Counsel represent both parties.

My policy preference is based on my prejudices, of course. I am a trial lawyer, and prosecuted and defended serious felony cases for four years in the military, including one year in a war zone.

I simply do not believe it is right or just for the government on behalf of the people to execute a human being for a capital offense without assuring a meaningful defense.

John K. said...

BTW, the inspiration from my comment above came from Chapter 13 of Dr. Mary J. Ruwart's Healing Our World: The Other Piece of the Puzzle, available here.

Eli Blake said...

I don't see convincing evidence of a trend here however. Since there were zero states that had the death penalty for child rape, any supposed 'trend' could mathematically only go in one direction. But now there are only five or six (I forget whether it is five, or six) so that still isn't exactly a 'trend.')

Also, yes the rape was horrible, but there are some real questions about it that weren't brought up in the context of a Supreme Court argument about the constitutionality of the law itself.

The victim originally reported she'd been raped by two neighborhood boys. She changed her story and said it was Kennedy, her stepfather only after she had been threatened with being placed in foster care if she didn't implicate him. There is also no physical evidence linking him to the crime, only what she said after being threatened with being put in foster care.

So whatever the outcome of the constitutional case, it is likely that the Kennedy case will be appealed on the grounds that he was convicted on the word of a single witness who was being threatened if she didn't change her story to implicate him.

I'd also point out regarding DNA that rape or child molestation is one of the easiest crimes to frame someone for-- all you need is a used condom (preferably one without spermicide), turned inside out and you have DNA evidence wherever you want to put it.

Emily said...

The Kansas model of having a specialized trial office to handle all capital cases may seem like a good idea, but do not pretend that by having a unique office, Kansas has magically avoided all of the problems that plague public defender offices throughout the country. The death penalty unit is still likely to suffer from all those same issues because they are still a public defender office. They are still likely to suffer from having too few attorneys to handle too many cases. They still may lack the financial resources to hire the experts they need, to pay for independent testing of evidence, to hire jury consultants, and to pay for venue studies. Kansas is facing a large increase in the number of capital cases being filed. The death penalty office must receive an increase in resources to meet the growing caseload for the great Kansas model to work in the real world.

Simon said...

Emily, can you speak to whether the increase in capital filings is mainly a result of a general increase in criminal filings across the board in Kansas, or mainly an increase of the ratio of capital to non-capital filings? That is, is the increase because there are just more cases, and correspondingly more capital cases in absolute terms, or is the SAG pushing for the death penalty in a higher percentage of the cases being filed than before?

Revenant said...

I'd also point out regarding DNA that rape or child molestation is one of the easiest crimes to frame someone for-- all you need is a used condom (preferably one without spermicide), turned inside out and you have DNA evidence wherever you want to put it.

Then you need a doctor to be complicit in the finding that the rape occurred and, of course, the cooperation of the child in question. This is assuming that you can find a used condom from the person you want to frame in the first place.

It is easy to think of numerous crimes which are easier to frame someone for -- murder, theft, burglary, drug possession, drug dealing, child molestation (not rape)... etc, etc.

Emily said...

Simon, it's my understanding that there is an increase in the ratio of murder cases being charged as capital cases. The Kansas S.Ct. declared the death penalty statute unconstitutional a few years ago. The US Supremes then took it up and reversed the decision in Kansas v. Marsh. I think Marsh has affected the caseload facing Kansas in two ways: 1) a lot of capital cases were put on hold while Marsh was litigated, all of which are now back on the trial docket; and 2) prosecutors are charging more capital cases because they now feel more comfortable using the statute since it has passed constitutional muster.

Smilin' Jack said...

The principal technical argument against the death penalty seems to be 20 years out of date. To argue that "XYZ was wrongly convicted and sentenced to death because we didn't have DNA testing [then], and therefore we should do away with the death penalty [now]." is, to be blunt, a really stupid position.

Sigh...my point did not concern the cases where DNA evidence is available, but rather the (majority) of cases where it isn't...like, for example, THE CASE THIS POST IS ABOUT. The number of false convictions in the past revealed by modern DNA technology shows that cops, judges, and juries frequently fuck up. In cases without DNA evidence they will continue to fuck up. And if the death penalty is extended, more of those fuckups will be fatal.

Jeremy said...

vnjagvet-
Ok, policy arguement - that's fair. 6th ammendment comments revoked.

As a society, we've agreed that defendents should be gauranteed at least some counsel and we've agreed that the minimum level of expertise be, I don't know, I guess a fresh, apple-cheeked kid that just passed his Bar. Why should we have to provide him with Johnnie Cochran? A defendent's defense should be his responsibility, not the state's. If he gets the opportunity for a meaningful defense that seems reasonable to me.

blake said...

". . .but now we're really, really sure."

Yes, as a matter of fact, we are.


Well, good for you! Seems to me I can't go six months without hearing about a police department/evidence lab being less than meticulous with their tests. And not all that infrequently uncovering long-term extended fraud (NJ, RI, TX are the states that come immediately to mind).

What? Am I the only one who reads Balko here?

Once you remove the question of guilt, that is, once you know without any doubt at all that someone is guilty, how can you not support their being executed?

Oh, I dunno. You could be against killing people, just on general principle. But that's not really relevant here.

The idea you're pimping is that you actually can remove the doubt.

What part of you would have any sympathy at all for a pig that rapes an 8 year old?

I presume if I came across something like that, my reaction would be swift and fatal to the pig in question. Hard to say for sure without ever having experienced it.

If you do have any such sympathies, I would kindly require that you stay away from my daughter.

What part of you can have any sympathy for a state that claims infallibility? If you do have any such sympathies, I kindly require that you stay away from my laws.

Eli Blake said...

Smilin Jack:

Keep in mind too that in a lot of the screw ups it is just a matter of their being lazy. It is a fact that most often a family member is the guilty party, and the cops know this. So in many, many (far too many) cases they have proceded on this assumption and only looked for evidence that incriminates family members.

The case of Gary Gauger in Illinois is instructive: He came home and found his parents murdered. So he called the police. From the first moment of the investigation the police had exactly one suspect: Gary Gauger. They grilled him for hours, and finally brought in a polygraph on which they claimed he was lying, and after nearly two days of intensive interrogation they got him to 'confess.' He was sentenced to death. Later on it turned out that 1) a gang of bikers had murdered his parents, 2) Gary Gauger had nothing at all to do with it, and 3) there was plenty of evidence at the scene that would have made it clear who did it, but the police ignored all of it because they were fixated on Gary Gauger. He was the seventh of thirteen men exonerated after spending time on Illinois' death row.

To me, this is an even bigger problem than rogue cops, or cops who intentionally plant evidence in order to frame somebody: Lazy cops, who fixate on the first suspect they find and ignore any other possibility because that might force them to get off their butts and work harder. Call it the 'Richard Jewell scenario.' (Remember that Richard Jewell was the guy who discovered the Olympic Park bombing and the FBI, following the simplest explanation in lieu of actually investigating the case, spent several weeks fixated on him before they finally had to admit that they didn't have a case, and it wasn't until many months later that they figured out that it was Rudolph.)

People who simply assume that homicide investigators never do a half-assed job and that they are all up late at night like Columbo trying to get it right are simply foolish.

blake said...

To argue that "XYZ was wrongly convicted and sentenced to death because we didn't have DNA testing [then], and therefore we should do away with the death penalty [now]." is, to be blunt, a really stupid position.

We weren't perfect before, but now we are.

Nothing could possibly go wrong.

DNA evidence can't be planted. Labs don't make mistakes, or get lazy, or get influenced by corrupt investigators.

Technology helps. A lot. No doubt. Just fifteen or so years ago when they did the first "Autopsy" special on HBO, the shows were very interesting. Lots of sleuthwork.

The most recent one, about five years ago, just shows them going in looking for DNA. Not so interesting, but very effective.

Anyway, I don't really have a position on the death penalty, I'm just disturbed by the "state is infallible" concept. Say that it's close enough, that mistakes will be made, but that those will be outweighed by the good that comes from the state killing somebody--but please, don't say that it's perfect.

Revenant said...

The number of false convictions in the past revealed by modern DNA technology shows that cops, judges, and juries frequently fuck up.

Well, no. The number of false convictions doesn't tell you anything about their frequency; you need to know the ration of false convictions to legitimate ones.

Skyler said...

Blake opined,

"What part of you can have any sympathy for a state that claims infallibility? If you do have any such sympathies, I kindly require that you stay away from my laws."

I'm sorry, fellah, they're not "Your" laws. They're ours. That's what our country is all about.

Smilin' Jack said...

Revenant said...
Well, no. The number of false convictions doesn't tell you anything about their frequency; you need to know the ration of false convictions to legitimate ones.


If you want to be pedantic you should try to get your pedantry straight. "Frequency" has nothing to do with any "ration(sic) of false convictions" but rather refers to how often such convictions occur. And the answer is: too often.

Revenant said...

Jack,

If you know the ratio of false convictions to total convictions, you can derive the frequency of false convictions from the overall conviction rate. If all you know is that there have been some number of false convictions, you don't really know anything useful. That's what I was getting at.

And the answer is: too often.

Thank you for sharing your opinion.

Now let's discuss something that's actually useful: the facts. According to The Innocence Project, 215 people have been cleared by DNA evidence over the last 19 years, of whom 16 were on death row at some point. That's about 0.3% of the folks who were on death row during that time. It isn't immediately obvious that that is "too often" for the system to make a mistake, especially since the mistakes seem to be getting caught.

Trooper York said...

"I'm sorry, fellah, they're not "Your" laws. They're ours. That's what our country is all about."

Well except for my in-laws. I will be happy to turn them over to you my man, no questions asked. Just let me know where to mail them.

Trumpit said...

"That's why people sign on for the death penalty. They instinctively understand that the kind of person who could commit that sort of crime is the kind of person who needs to be killed."

Please share with us all your other wonderful instincts, Revenant. I want to see if I share your instincts or not. I doubt if our instincts coincide even 1% of the time. I think parents who bang Jesus, or Mohammad into their children's head should be put to death by stoning. I guess we agree on that instinct, at least.

blake said...

I'm sorry, fellah, they're not "Your" laws. They're ours. That's what our country is all about.

I'm pretty sure one of the Presidential candidates assures me your children are "ours", too.

Revenant said...

I want to see if I share your instincts or not. I doubt if our instincts coincide even 1% of the time.

That's very reassuring.

But I'm right on this. Normal people have very vehement reactions towards people who victimize little children. It is a pretty easy thought experiment to perform -- if you saw a man raping a child, would you be willing to kill him to stop the rape? Of course you would, at least if you were a normal adult. That's the instinct I'm talking about.

I think parents who bang Jesus, or Mohammad into their children's head should be put to death by stoning. I guess we agree on that instinct, at least.

I think you've got me confused with downtownlad. :)

Simon said...

Trumpit said...
"I think parents who bang Jesus, or Mohammad into their children's head should be put to death by stoning."

One joint at a time, presumably.

knoxwhirled said...

I think you've got me confused with downtownlad. :)

LOL!

joe said...

"Chortles" is Aunt Dahlia's characterization, is it not?
And what is Ginsburg talking about? Women in burkhas and chains in the '70's? I don't remember it that way.