Gun Ban Struck Down by Supreme Court

[[AK]Hylander]

By a hair...

[[AK]Bribo]

Kennedy threw them a bone after joining the bonehead majority in yesterday's decision (http://www.nytimes.com/2008/06/26/wa...fc&ei=5087%0A). How can they sleep at night?

[[AK]Palooka]

I'm assuming that you're referring to Kennedy v. Louisiana, Bribo. What a travesty. For those who don't know the facts of the case, Patrick O. Kennedy, a 300-pound man, ferociously raped his 8 year-old stepdaughter in 1998. The injuries sustained in the rape were horrendous; without getting too graphic, I'll just say that he fairly obliterated her genitalia. She required immediate surgery to put her back together again. As Justice Kennedy states in his decision, "An expert in pediatric forensic medicine testified that [the victim's] injuries were the most severe he had seen from a sexual assault in his four years of practice."

One would think that the author of this decision would feel, in light of the grisly facts, including those quoted above, that the only thing a civilized society could responsibly do with an animal like Patrick O. Kennedy is to put him to death. However, to the majority's thinking, no child rape can possibly warrant the death penalty: "The goal of retribution, which reflects society's and the victim's interests in seeing that the offender is repaid for the hurt he caused, . . . does not justify the harshness of the death penalty here. In measuring retribution, as well as other objectives of criminal law, it is appropriate to distinguish between a particularly depraved murder that merits death as a form of retribution and the crime of child rape." Thus, the act of shattering a young girl's innocence and thoroughly mutilating her genitalia via rape, then leaving her bleeding profusely for an hour and a half before calling 911 cannot match the depravity of any murder that has ever resulted in a death sentence. Earlier in the decision, Justice Kennedy states, "The [Eighth] Amendment 'draw[s] its meaning from the evolving standards of decency that mark the progress of a maturing society.' Trop v. Dulles, 356 U. S. 86, 101 (1958) (plurality opinion). This is because '[t]he standard of extreme cruelty is not merely descriptive, but necessarily embodies a moral judgment. The standard itself remains the same, but its applicability must change as the basic mores of society change.'" So, we are to conclude that the "basic mores of society" have changed such that heinous crimes like this rape are more acceptable to our society and therefore less deserving of the death penalty. This is simply moral relativism; a crime of this magnitude is just as vile now as it has ever been, and it deserves deadly retribution just as much now as it ever did.

What Patrick O. Kennedy did to his stepdaughter was cruel and unusual. What the state of Louisiana sentenced him to--lethal injection--was humane and decent. The Court has single-handedly fed this nation's children to the wolves, and there's not a damned thing we can do about it. We are the mere subjects of an authoritarian regime. We are completely at the mercy of a tiny, unelected cabal.

[[AK]Beaker]

One of the things you have not considered Palooka is that many child advocacy groups were in favor of the court's decision. Often these crimes are perpetrated by family members and this makes conviction difficult because it is very hard for a child to testify against a family member. Imagine the pressure this would have placed on a child if the case was upheld. Having dealt with children that were placed in intolerable situations I know their retecance to point a finger at a trusted family member much less if they knew the person would die.

I certainly do not advocate crimes having seen the effects all too closely, however I would rather have an individual locked up than going free becuase a child does not want to be responsible for the death of loved one.

Now back to the gun ban being overturned all I can say to that is my boy will be mighty happy when he returns to the country!!!!!!

[[AK]Palooka]

Your point is moot, Beaker; Mr. Kennedy was already on death row long before this decision was handed down. Thanks to the Court, that evil piece of garbage will live, and no other child rapist, no matter how devious, will ever again receive the death penalty in cases in which, thankfully, the victim survives.

I don't care what so-called child advocacy groups think. Their opinions do not change the fact that Kennedy v. Louisiana is a deeply flawed decision and an abuse of power; the gang of five willfully employed an imaginary extension of the Eighth Amendment to, as Justice Alito writes in his dissent, "authorize [the Court] to strike down federal or state criminal laws on the ground that they are not in the best interests of crime victims or the broader society." The Eight Amendment states, "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." As you can see, nowhere does the Eight Amendment provide this authority. Nor does it prohibit the death penalty for child rape, which is precisely what the decision holds. By all means, I welcome you to produce this prohibition as specified by the Eighth Amendment. I presume that much exegesis will be required.

Kennedy v. Louisiana uses, as precedent, Coker v. Georgia (1977), another flawed decision which held that the Eighth Amendment prohibits the death penalty for the rape of an adult woman. A child is not an adult woman. This was apparently lost on Justice Kennedy and his idiot cohorts, who have effectively amended the Constitution, without a constitutional convention, such that the Eighth Amendment now specifically includes the death penalty for child rape as an example of a cruel and unusual punishment. This is judicial fiat. Where punishments are not obviously unconstitutional according to the idea of "cruel and unusual punishment" as held by the signatories of the Constitution, it should be up to the states to decide.

The authority of the Constitution is at stake here. The opinion relies on "evolving standards of decency." If the Constitution shall retain any meaning at all, we must not concern ourselves with today's standards of decency, but the standards of decency as held by the framers of the Constitution. Its original meaning is all that matters, and until recently, as Justice Scalia explains, it's all that did matter: "Originalism used to be orthodoxy. Nobody ever thought the Constitution morphed. If you had told [19th-century Associate Justice] Joseph Story that what it means is going to change from decade to decade on the basis of whatever five out of nine justices on the Supreme Court think it ought to mean, he would have been uncomprehending."

I am not interested in it's-good-for-the-children arguments in favor of Kennedy v. Louisiana. It's a bad decision. Justice Alito skewers it in his dissent, which you can read, along with the majority opinion, here: http://www.scotusblog.com/wp/wp-cont.../06/07-343.pdf. His summary is as follows:

[T]he Court holds that the Eighth Amendment categorically rules out the death penalty in even the most extreme cases of child rape even though: (1) This holding is not supported by the original meaning of the Eighth Amendment; (2) neither Coker nor any other prior precedent commands this result; (3) there are no reliable “objective indicia” of a “national consensus” in support of the Court’s position; (4) sustaining the constitutionality of the state law before us would not “extend” or “expand” the death penalty; (5) this Court has previously rejected the proposition that the Eighth Amendment is a one-way ratchet that prohibits legislatures from adopting new capital punishment statutes to meet new problems; (6) the worst child rapists exhibit the epitome of moral depravity; and (7) child rape inflicts grievous injury on victims and on society in general.

The party attacking the constitutionality of a state statute bears the “heavy burden” of establishing that the law is unconstitutional. Gregg, 428 U. S., at 175 (joint opinion of Stewart, Powell, and STEVENS, JJ.). That burden has not been discharged here, and I would therefore affirm the decision of the Louisiana Supreme Court.

[[AK]Nuts]

In child rape cases I am in agreement that the death penalty should never be applied. Two reasons: 1) rarely are people executed while on death row. 2)Justice would be better served by having him serve his jail time in general population... maybe at Pelican Bay (imo hardest prison in the US). Criminals general frown on crimes against children and things should just 'work themselves out' so to speak. Brutal jail rapings for a few years before being bled out in the laundry room sounds like a win-win for us.

[[AK]Palooka]

In child rape cases I am in agreement that the death penalty should never be applied. Two reasons: 1) rarely are people executed while on death row. 2)Justice would be better served by having him serve his jail time in general population... maybe at Pelican Bay (imo hardest prison in the US). Criminals general frown on crimes against children and things should just 'work themselves out' so to speak. Brutal jail rapings for a few years before being bled out in the laundry room sounds like a win-win for us.

Whether or not you support the death penalty, under whatever circumstances, you should consider Kennedy v. Louisiana a terrible decision for America. The Supreme Court is getting away with rewriting the Constitution--reading into it mandates that simply are not there. Of course, this isn't the first time; nearly every time they convene, they hold their own constitutional convention. Five members of the Court have no respect for the Constitution, and as a result, our freedoms are being chipped away.

Regarding the philosophical question of the death penalty in cases of child rape, I am personally in favor. I reject the argument that the threat of the death penalty removes any incentive to keep child rape victims alive (most pedophiles are not murderers), and I think that the only good child rapist is a dead one. In his opinion, Justice Kennedy claims, in effect, that no child rape reaches the level of depravity seen in the kind of murder cases that send the convicted to death row. This is absurd. If what Patrick O. Kennedy did to that little girl doesn't qualify as depraved, then I am not clear on the definition of the word. Justice Alito writes in his dissent, "I have little doubt that, in the eyes of ordinary Americans, the very worst child rapists—predators who seek out and inflict serious physical and emotional injury on defenseless young children—are the epitome of moral depravity." Who would disagree?

I do see Beaker's point about problems encountered when the victim is too afraid or intimidated to testify. Not all cases are the same, however; Beaker's concern does not apply to the case that brought about this Supreme Court decision, for example.

Nuts, you appear to desire for convicted child rapists to suffer in the worst way. Since those on death row are rarely executed, you think they'd have a better chance of suffering abuse or being killed in the general population. I see your point. It demonstrates that our justice system is broken. Those sentenced to death should get their appeal, then the needle (or a bullet between the eyes, which is a hell of a lot cheaper).

[[AK]Gunny Highway]

I totally agree Palooka any child rapist does in fact "murder" that child's innocence and their soul as they will never be the same and therefore should be eligible for the death penalty. The problem here as I see it is that they are removing the possibility of the death penalty regardless of the circumstances.