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Wednesday, June 25, 2008

Supreme Court on child rape

A bevy of important U.S. Supreme Court decisions are coming down the pipe, including the D.C. v. Heller case which will decide whether the second amendment is an individual right to have a gun, or some sort of "militia" right (or whatever. I never understood the reasoning behind the position that the 2nd amendment is something other than an individual right. But that's neither here nor there).

The most interesting ruling to have been issued today is the Patrick Kennedy v. Louisiana decision.

In a 5-4 ruling, the Supremes overturned a Louisiana law that allowed the death penalty in cases where the accused was found guilty of raping children.

SCOTUSblog summary:

"Barring the death penalty for any crime that does not take the life of an individual victim, the Supreme Court ruled Wednesday that it is unconstitutional to impose the death penalty for the crime of raping a child. If the victim does not die and death was not intended, capital punishment for that crime violates the Eighth Amendment, the Court ruled in an opinion by Justice Anthony M. Kennedy."

From Yahoo! News:

"In its written ruling, the court specified that even if a rape was particularly atrocious, it was impossible to set down a list of circumstances under which the death penalty would be justified, without opening the door to arbitrary decisions."

Meanwhile, according to MyWay news, the court was split along liberal/conservative lines:

"The death penalty is not a proportional punishment for the rape of a child," Justice Anthony Kennedy wrote in his majority opinion. His four liberal colleagues joined him, while the four more conservative justices dissented.

"There has not been an execution in the United States for a crime that did not also involve the death of the victim in 44 years."

The more conservative justices argued that child rape is a particularly harmful and heinous kind of crime, justifying the death penalty. The fact that Louisiana has this law, and other states were considering it is proof, they argued, of this conclusion. But Kennedy retorted that the consensus was on the other side, since no state has actually used the death penalty on any rape cases in 44 years.

Posted by P.M. Jaworski on June 25, 2008 in Current Affairs | Permalink


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As disgusting as child rape is, murder is worse still. There should be a higher level of punishment for murder.

Consider also that the child rapist is less likely to get caught if his victim is dead. If he gets the death penatly either way, his incentive to murder is considerably higher. Dead people can't testify against you.

Posted by: TM | 2008-06-25 2:35:31 PM

I hadn't thought of that, TM. Good point.

Posted by: P.M. Jaworski | 2008-06-25 2:39:12 PM

When you told me about this, I just KNEW Kennedy was going to be the deciding vote. Sometimes I think he is one of the most powerful men in the United States.

Want to bet that he's the deciding vote in the Heller case, too? But likely in a libertarian-friendly direction. Wikipedia says that his philosophy "seems to be libertarian." Check out Wikipedia's run down of his opinions and tell me most of them aren't libertarian, at least in spirit.

Posted by: Terrence Watson | 2008-06-25 2:40:35 PM

It's up to the family to kill child rapists, no need for Court involvement.

Posted by: philanthropist | 2008-06-25 3:27:48 PM

The message here is that it is better to be a child-rapist than a raped child. You will be treated better and your well-being will trump that of the raped and possibly murdered child.

Some rapists kill their victims and others don't. The one's who don't are diddling pedophiles. The one's who do are homicidal depraved monsters who don't deserve to walk the face of my earth.

This suicide of Western society is being committed in slow motion by the progressive Leftist monsters whose morals are depraved, disgusting and infuriating.

It would be preferable if they lived on some planet other than this one.

When will the right stand up and really fight back against these kinds of outrages?

Perhaps things like this will change once we have sharia law in Canada.

Posted by: John West | 2008-06-25 3:34:19 PM

So, John West, you're like sharia law? Well, I suggest to study it in person, perhaps by moving to Iran or Saudi.

Death penalty is never right, and certainly not in cases where there is no killing involved. Life in prison is perfectly sufficient.

And this is not a "progressive lefty" position, this is classical liberal position, in total agreement with the traditions of the West.

The left, on the other hand, is pretty happy to execute people, just look at China. (And so are the religios conservatives, just look at Saudi and Iran.)

Posted by: Johan i Kanada | 2008-06-25 4:13:44 PM


"Death penalty is never right, and certainly not in cases where there is no killing involved."

Who says? That's a moral answer and I have a different morality than you.

I'm not saying that I don't have qualms about it. I do. I don't want to see innocent people dead. So I'm willing to restrict the death penalty on that bais.

However, if there were a fool proof way to only execute the guilty, I'd have no problems with that. The next question involves determining which crimes deserve the death penalty.

I balk at any suggestion that it be used for religious heresy or political dissent. That leaves out the Saudi and the Chinese.

After that, there is a lot of grey area.

I have no problem with offing child rapists, however.

Posted by: h2o273kk9 | 2008-06-25 4:21:46 PM

h2o, few of us would like nothing more than seeing guilty child rapists excecuted. There are 2 problems with this though. The first is that executing is for the most serious offences. Raping a child and killing them is more serious than raping them. If a child rapist is facing the death penalty, he may ask himself what the point is of keeping the child alive if he is facing the death penalty either way. Why no dispose of the key witness?

Secondly, giving the state power over life and death is scarier than almost anything else I can imagine. Until we can know 100% that no innocents will be executed then it is only a matter if time before someone's son, or dad, or brother, is executed for a crime he did not commit.

And when Sharia finally takes over Canada, we do not need to give them any more of a head start.

Posted by: TM | 2008-06-25 5:10:48 PM

I appreciate the subtlety of your argument. It is persuasive.

I was merely providing a moral response and not one related to judicial efficacy.

In other words, if there were a death penalty, in principle, all other things being equal (ie. no further harm to the child), I'm all for it for child rapists.

Posted by: h2o273kk9 | 2008-06-25 5:50:22 PM

h2o, agreed.

Posted by: TM | 2008-06-25 6:30:38 PM

Dead people can't testify against you.

Posted by: TM | 25-Jun-08 2:35:31 PM

The Lindbergh Law had the same effect with kidnap victims. It made kidnapping a capital offence once a ransom is demanded, so murdering a victim had no effect on the degree of punishment.

Posted by: dp | 2008-06-25 8:27:43 PM

What I find most interesting about these controversial judicial decisions in both countries is how many of them are a 5-4 split. That suggests the judges are voting along ideological, not legal lines. It's a sad commentary on our legal system when you can take the same facts to ten different judges and get ten completely different outcomes. They should all be the same. Otherwise why not just play spin the bottle?

Posted by: Shane Matthews | 2008-06-25 11:24:41 PM

"So, John West, you're like sharia law? Well, I suggest to study it in person, perhaps by moving to Iran or Saudi."
Posted by: Johan i Kanada | 25-Jun-08 4:13:44 PM

Apparently sarcasm is too abstract a concept for your tiny mind.

Posted by: John V | 2008-06-26 8:31:54 AM

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