Talk Elections

Or did, yesterday, in State v. Kennedy (http://www.lasc.org/opinions/2007/05KA1981.opn.pdf). On the issue of Corker v. Georgia: "while Coker clearly bars the use of the death penalty as punishment for the rape of an adult woman, it left open the question of which, if any, non-homicide crimes can be constitutionally punished by death."

Discuss.

I expect the Supreme Court to grant review.

I agree and expect reversal by a 5-4 margin with Kennedy holding the deciding vote.

He's been leaning slightly more to the left on death penalty issues for the last few years.

It should be upheld; I for one, think that the death penalty should be mandatory for anyone committing a felony while serving a life-sentence. (yes, it's possible)

Cocaine posession is a felony in some states.  Would you kill prisoners on drugs?

I was thinking more along the lines of Assaulting another inmate, assaulting a Prison Guard, attempted escape, selling drugs; but yes, I would include possession of illegal substances, if that is indeed a felony. But, as I said, only for anyone already serving a life sentence. It would certainly help with overcrowded prisons.

I always knew Teddy would get his come-upence

Louisiana will be a good state to live in once Blanco crawls back in her hole.

I think not having silly laws on the books will help more than executing citizens in cutting down on overcrowded prisons.


Yes, now that those annoying black people are gone.  Republican pride!

Attempted escape is not even illegal in sane countries.

I agree, however, we may disagree on what is a "silly law"

It's sad you're so insecure in your ideology, you back it up with baseless allegations of racism instead of actual argumentation to support it.

Really?  What's the logic behind that?

The logic is that a prisoner has every right to do that.

Of course, he'll lose all chance of an early release. And of course, it's illegal to help spring others from jail, which in practice means it's also illegal to attempt escape in groups.

Punishments for attempted crimes find their genesis in early English and American common law and exist in no other legal systems.

Early English and American common law regarded these crimes as misdemeanors, only later American criminal statutes (post-1900) regarded these crimes as felonies.  That is how it stands nowadays - England still regards attempted crimes as misdemeanors.

Same goes if you successfully escape (and get caught again years later), though.

This will be interestsing once it reaches the Court

There is no way the Court doesn't take this case - it has been obsessed with death penalty cases in recent years - it will take the chance to explore another alcove of it.

I would have to agree with Mr Spade that the case will hinge on Justice Kennedy. Chief Justice Roberts has shown little sympathy to the liberal bloc on this issue, and I do not see Justice Alito, a former prosecutor, parting ways with the conservative bloc.

Justice Kennedy was in the majority of Roper, Atkins and House - all of these ended up favouring the liberal bloc - all recent decisions in capital punishment case law. However, do not bet against Justice Kennedy conscience deciding that the horrific nature of a crime against a child can override his previous drift to the left. He is a sentimentalist after all.

The fact that the death penalty is disproportionate to the crime of rape was supposedly established (in Coker) by the fact that only one state authorized capital punishment for rapists. I don't know what the situation is now, but when Coker was decided, only three states authorized capital punishment for child rapists. If forty-nine states represent a "national consensus" that the death penalty is disproportionate to rape of an adult, then surely forty-seven states can be said to represent a "national consensus" that the death penalty is disproportionate to rape of a child. Between forty-nine and forty-seven, I see no meaningful difference.

Needless to say, this notion of counting up states while interpreting the Eighth Amendment is unsound--but the Supreme Court has adopted it nevertheless, so one is forced to conclude that the Louisiana Supreme Court probably erred.

Not true. Attempted murder is a crime under Portuguese (civil) law.

Interesting, I didn't know that (though I don't swear to be an expert in Portuguese law).  :)

So in these civil law countries (besides Portugal), you  could shoot at someone and not be tried for anything if you miss? (no attempted murder)

This is assuming of course that it's legal to own the gun in that country of course.

LET 'EM FRY!

No.

Cert. granted; see here (http://www.supremecourtus.gov/orders/courtorders/010408pzr.pdf). "The brief of petitioner is to be filed on or before Thursday, February 14, 2008. The brief of respondent is to be filed on or before Wednesday, March 12, 2008."

My prediction is that we'll be looking at a 6-3 or 7-2 reversal.

http://www.scotusblog.com/wp/wp-content/uploads/2008/06/07-343.pdf

Reversed, 5-4. The court's holding is categorical: "The Eighth Amendment bars Louisiana from imposing the death penalty for the rape of a child where the crime did not result, and was not intended to result, in the victim's death."

Kennedy's logic on this one is particularly amusing, by just skimming through the opinion.

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."

As I point out here (http://centanium.com/2008/06/kennedy-v-louisiana.html), 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.

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.)

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.

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.

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.

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

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.

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

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

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.