Osler's Razor

In other news...it's also a good day to be ExxonMobil and, given what ScotusBlog is speculating, a gun owner in DC.
 

I was going to post a comment about the Supreme Court and bad decisions and lack of actual constitutional language to support this decision, and blah blah blah....but I can't muster the strength. The highest court in the land is merely one more political arena, and every decision is basically made along political lines.

I just wish they would've written the truth: "We five justices are striking down this law because we don't like the death penalty. Just flat don't like it. We don't believe it works as a deterrent and we want to be more like Europe, because everyone knows inherently how awesome Europe is at stuff. We would get rid of it in all cases, but we don't want Texas to succeed from the Union again. So, we will have to take it one step at a time."
 

And yes, I obviously meant "secede" and not "succeed."
 

This stuff is all well beyond my limited knowledge of criminal law, sentencing, etc., but if the death penalty doesn't "fit" for child rape, I don't see how it fits for any crime.

Either get rid of it completely or stop messing around with niceties.

I do like the idea previously suggested that instead of sentencing these monsters to "life in prison," courts start sentencing them to "death in prison."
 

The facts are graphic and awful. Kennedy (not the justice) was charged with the aggravated rape of L.H., his then-8-year-old stepdaughter. When police found L.H. some two hours after the attack, she was bleeding profusely from the vaginal area. She was transported to the hospital, where she was discovered to have a laceration to the left wall of the vagina that “separated her cervix from the back of her vagina, causing her rectum to protrude into the vaginal structure. Her entire perineum was torn from the posterior fourchette to the anus. The injuries required emergency surgery.” Shortly after he committed the rape, Kennedy called a colleague to ask “how to get blood out of a white carpet because his daughter had ‘just become a lady.’

Instead of blathering on about respecting the dignity of a rapist's life and the questionable morality of the death penalty (interestingly, neither of those seem to be constitutional issues), maybe Justice Kennedy should've looked at the facts. I don't think there is any question that this SOB deserved to die and deserved to be shipped off to hell as quickly and efficiently as possible.
 

RRL, here's a point we can agree on! The Supreme Court is a political arena as much as the Senate floor, the Oval Office, or your local polling place.

I think that a neutral and detached judiciary that dispassionately applies the law would be great, but until we create Robo-Judge, that's not going to happen. Humans are political creatures, and asking judges to check their politics at the courtroom door is just denying the basic reality that it's impossible for someone to be truly objective.

Does it bother me that the Court, in making decisions like this, is usurping what might better be left to a democratic function? Yeah, I suppose it does, only because of a lack of accountability. Do I agree with the result in this case? Yes, for both the policy reasons you've highlighted (I just plain don't like the death penalty) but also for substantive reasons. Although I agree with you that on the facts of this case, execution is a justified response, I would rather let scum like Kennedy (the rapist, not the justice) live and suffer the consequences of his crime than extend the death penalty and potentially put an innocent person to death. In the balance of equities, suffering the criminal to live is a lesser sin than killing an innocent.

But are we going to get an opinion from the Supreme Court that says that? Of course not. The Supreme Court is bound up in the notion of precedent and applying Constitutional language, polite fictions they use to justify their rulings. Of course, "polite fictions" could be a suitable title for all legal pronouncements, but that's another story for another time.
 

Did you hear about the new opinion about the right to council at the initial appearance? Guinn just told us about it. I'm not sure what time today but he assigned it to Amy Foster while we were having crim prac.
-liberaldespoticterrorist.
 

It's "counsel," not "council." Spelling mistakes will get you eaten alive once you graduate and start work.
 

hahah true. normally i don't make them or show that i'm too lazy to check how a word is spelled by following the word with "(sp?)". however, when i'm in class and trying to do something before i forget about it, spelling gets sacrificed.
 

"Spelling Gets Sacrificed."

I think people might pay to see that happen to Tori Spelling. Her acting career is criminal. Would this count as the Death Penalty?
 

I agree with the Supreme Court on this one. Child Rapists need to be castrated, preferably with kiddie scissors, NOT put to death.
 

"I would rather let scum like Kennedy (the rapist, not the justice) live and suffer the consequences of his crime than extend the death penalty and potentially put an innocent person to death. In the balance of equities, suffering the criminal to live is a lesser sin than killing an innocent."

This is a perfectly reasonable position, and one I could even conceivably agree with. But this is a policy justification for banning the death penalty. This is a reason why legislators should make it illegal. This is a reason why voters should vote against applying it to these types of situations. This is NOT a constitutional basis for striking down the Louisiana law. That is the problem. The opinion has to be so long because Kennedy has to distract you from the fact that he has no constitutional basis for what he is doing.
 

I think Kennedy did an excellent job writing a tough opinion. The founders weren't exactly kind to posterity by prohibiting 'cruel and unusual punishment'. What did that even mean in their time? Thumbscrews or dungeon torture? I don't know.

The Supreme Court did the best it can in this area. The jurisprudence in this field is fluid because, standards of decency and the things we find cruel and unusual change over time. I think the most telling statistic in this whole debate is that while several states have had this statute for a long time, no jury has given a death penalty in something like 30 years for child rape, except this one in Louisiana.

What this man did was awful. But we don't even kill all murders. Minor and mentally impaired murders are spared. If we can life with them in jail for life, we can life with this guy in jail for life.
 

If society has changed its views on who should be subject to the death penalty, or what form of death they should receive, why can't we let society make those changes? Why can't we let the actual voice of the people be heard through voting or through the election of legislators? Why do we have to allow 9 "little dictators" to tell us what society wants when we are capable of doing that all on our own?

This is the problem. The constitution shouldn't be subject to the whims of the general public. That is extremely dangerous. If 50.1% of the population believing that the death penalty is wrong makes it "cruel and unusual" what happens when 50.1% of the population decides that we should go back to burning people at the stake?

The constitution should not be used as a tool of social policy. But I guess I've lost that battle. So, I guess I will just hope that 50.1% of the population doesn't decide that conservative lawyers in Waco, Texas shouldn't have habeas rights, or shouldn't be allowed to carry guns, because then I'm sure Justice Kennedy will find some way to make that unconstitutional as well since society has deemed it unnacceptable.
 

And shouldn't this conversation have taken place tomorrow, on political mud wrestling thursday??
 

Unfortunately we will have to go through this again, as Texas' new "stricter" laws allow death for "serial child rapists."

I still can't understand how death for a child rapist is cruel and unusual.

Plus, you can't tell me that a serial child rapist isn't a danger to the community, without being dead.

Lastly, I will point out that many of my colleagues disagree with death for child rapists because they fear people will be less willing to come forward about crimes if death is even thought of as a possibility, but I believe that at some point we need to just rid our world of evil. My job has allowed me to see that evil does exist around us everyday, maybe the justices are too far removed to see it.
 

Child rape is by far the worst crime out there. Take it from someone that knows, living with the memories and nightmares is far worse than if the person had killed you instead of raping you. A kid that experiences that is never able to live a normal life again. The death penalty should be extended to include child rapists because the effect on the victim and the people around the victim is far greater than the effect that murder has. Since we put murders to death we should also put rapist to death.
 

I changed my mind about the kiddie scissors. maybe use one of those old fashioned box cheese graters.
 

6:35->I see your point, and don't doubt the intensity of the pain. But, the single best reason why we should not impose the death penlty on child rapists is that doing so would encourage them to kill the children they rape. Once word reaches pedophiles that they will be executed either way, then they will be more inclined to kill their victims in order to decrease their chance of being caught. "Why not? I face the same consequences whether I kill them or not," they will think. This is the way these sick people think. Take from me --> I worked in a prison during college and hold a masters in forensic psychology.
 

My Supreme Ct Seminar class went over this case, and during my later research I came to a couple of conclusions. (I will keep it brief for time's sake.)

1) The Eighth Amendment does not require any kind of proportionality. See Scalia's dissent in Harmelin v. Michigan (I think). Scalia did not address the death penalty except to say that "death is different." I see no reason to say that the Founders did not intend proportionality for every crime other than when death is imposed.

2) Courts misapply the original proportionality standard. The first case that I saw this standard was Weems v. U.S. (which Kennedy cited). This standard requires a graduated scale of punishments for offenses. Weems looked to other punishable crimes within the Puerto Rico (I think?) jurisdiction to see whether the punishment and crime were proportional with other crimes and punishments, not whether in the independent judgment of the court the crime-fits-the-punishment.

3) By saying that proportionality is required by the Eighth, improper policy considerations are brought into the judicial sphere.

I think Alito's dissent points out two major flaws in Roper's reasoning. First, it is improper to consider objective indicia when that indicia has been colored by dicta of the Court. Second, Roper can effectively cut off a new evolution for punishment if the first expansion in an evolution is challenged initially.