Louisiana Supreme Court upholds death penalty for rape of an 8-year-old girl

[Sam Spade]

Best line from the dissent, as posted on another site, through what I've read so far:

"A major theme of the Court’s opinion is that permitting the death penalty in child-rape cases is not in the best interests of the victims of these crimes and society at large. In this vein, the Court suggests that it is more painful for child-rape victims to testify when the prosecution is seeking the death penalty. Ante, at 32. The Court also argues that “a State that punishes child rape by death may remove a strong incentive for the rapist not to kill the victim,” ante, at 35, and may discourage the reporting of child rape, ante, at 34–35.

These policy arguments, whatever their merits, are simply not pertinent to the question whether the death penalty is “cruel and unusual” punishment. The Eighth Amendment protects the right of an accused. It does not authorize this 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 Court’s policy arguments concern matters that legislators should—and presumably do—take into account in deciding whether to enact a capital child-rape statute, but these arguments are irrelevant to the question that is before us in this case. Our cases have cautioned against using “ ‘the aegis of the Cruel and Unusual Punishment Clause’ to cut off the normal democratic processes,” Atkins v. Virginia, 536 U. S. 304, 323 (2002) (Rehnquist, C. J., dissenting), in turn quoting Gregg v. Georgia, 428 U. S. 153, 176 (1976), (joint opinion of Stewart, Powell, and STEVENS, JJ.), but the Court forgets that warning here."

[A18]

As I point out here, the Court's decision raises the question, "What about treason?"

The Court says that it "do[es] not address" "offenses against the State." But so far as I can tell, it makes no attempt to explain why its reasoning might not reach those offenses, while it necessarily does reach any "crime[] against [an] individual person[]" other than murder. The answer does not strike me as obvious.

[Vasall des Midas]

Yeah. Probably just a matter of time until the death penalty is strictly limited to murder (which I suppose most people believe it already is, anyways.)

Fun fact: In the UK, the death penalty for treason remained on the books for several more years after it was abolished for murder. In one of those ca. 1970 IRA trials, the judge, in delivering his reasoning for the life sentence, publicly regretted the fact that the defendants hadn't been charged with murder and he therefore couldn't hang 'em. (They were, of course, wholly innocent. As a court found twenty years later.)

[Sibboleth]

Death penalty for High Treason wasn't abolished until about 1998 or so. It was only theoretical of course. Death penalty for High Piracy (what a wonderful name for a criminal offense) lasted about as long IIRC.

[Emsworth]

If the "national consensus" standard is applied to Kennedy as it has been applied in other cases (i.e., by simply counting the number of states that impose a particular punishment), then the majority probably reached the correct result. I am not persuaded by the argument that state legislatures across the country would have liked to impose capital punishment for child rape, but were stifled by language in Coker.

The problem lies not with the Court's application of the national consensus test, but with the test itself. It is absurd and illogical to say that a punishment is constitutional if more than 50% of the states impose it, and unconstitutional otherwise.

[Senator Ben]

The problem lies not with the Court's application of the national consensus test, but with the test itself. It is absurd and illogical to say that a punishment is constitutional if more than 50% of the states impose it, and unconstitutional otherwise.

I totally agree.  I've noticed that a number of correct decisions: Brown v. Board, Roe v. Wade, and Roper v. Simmons, to name a few, aren't grounded all that strongly in actual Constitutional law.

[Emsworth]

I totally agree.  I've noticed that a number of correct decisions: Brown v. Board, Roe v. Wade, and Roper v. Simmons, to name a few, aren't grounded all that strongly in actual Constitutional law.

There's nothing wrong with the decision reached in Brown v. Board. The Court's opinion did not include the best arguments, but the result was perfectly sound.

Roe and Roper, on the other hand, leave a lot to be desired.

[Andrew]

I was thinking more along the lines of . . . attempted escape . . . But, as I said, only for anyone already serving a life sentence. It would certainly help with overcrowded prisons.

So would just letting them escape.  There's more than one way to skin a cat.

[Torie]

This decision is a close call, but I think correct. Cruel and unusual punishment I think is one of the few Constitutional strictures I think that adverts to contemporary mores, and was so intended. I don't think the founders intended "cruel and unusual" to be a static concept, and it is not even for a textualist who does not care about intent, a reasonable interpretation to interpret such language as embracing a static concept. What makes the case close, is whether or not contemporary US mores consider executing child rapists "cruel and unusual."

That is all.

[So the Heroes Fall]

I agree with the decision, but I have to admit, that reasoning is retarded.

[Sam Spade]

Larry Tribe supports reviewing USSC screw-up on this case (which has been filed) - Suspect he has an ulterior motive actually, but I agree:

http://online.wsj.com/article/SB121746018426398797.html?mod=opinion_main_commentaries

[A18]

Many of the calls for rehearing are puzzling; they seem to be based on the impression that the "evolving standards of decency" test has some actual effect on outcomes. There is no basis for that assumption.