[QUOTE=Baldwin]
Having the death penalty might also result in more killings in the (fortunately pretty rare) case of a stranger abducting and raping a child.
[/quote]
Maybe so, but that certainly is a policy issue that the legislature should deal with, not a constitutional issue for the courts.
[QUOTE=buttonjockey308]
What’s McCain have to do with it. Obama’s out against the ruling..
[/QUOTE]
That sure took balls!
Wonder if he’s more inclined to nominate for SCOTUS those more like the 5 liberals who ruled in favor of rapists and against the desire of the people … or those like the 4 good guys?
[QUOTE=What the … !!!]
That sure took balls!
[/quote]
I know everything Obama does is wrong, but he actually is pro-death penalty- a big problem for me, but apparently a good thing to you. Although I guess it isn’t anyway.
[QUOTE=Gadarene]
…Apparently one policy-based rationale behind the decision (I haven’t yet read the opinion itself yet, so if any of you have you can correct me) is that if child rape is punished as severely as child rape + murder, then there is no disincentive in that regard for a child rapist not to murder his victim as well.
Which makes a decent amount of sense to me, at least if you’re one of those people who believes that the death penalty has a deterrent effect.
[/QUOTE]
I think this is a valid point. But even if it is, it has nothing to do with the constitutionality of the DP being applied in these cases.
I have a question.
Some folks have said that they felt that “cruel and unusual” is an evolving concept, and I think it is on a practical level. After all, the death penalty as applied in the early days (death by hanging, death by firing squad) might be viewed today as cruel, as the convict may feel an unacceptable level of pain, or suffer through a lingering death in a botched attempt.
However, to rule that a particular method (say, death by firing squad) is unconstitutional in effect makes it unavailable forever. Who’s to say that in the future, the citizenry no longer feels that death by firing squad to be cruel and unusual?
With the inherent subjectivity of the phraseology, shouldn’t the various jurisdictions be allowed to decide for themselves what is cruel, and whether or not to ban certain forms of the death penalty?
For example, right now there is debate whether death by lethal injection is cruel. Some folks have floated the idea that, even though the convict is paralyzed and unable to communicate his/her distress, he/she still suffers. Reasonable people can disagree on whether the convict suffers, or suffers too much, just like reasonable people can disagree about the effectiveness or validity of the death penalty itself. Once some judge rules that lethal injection to be cruel and unusual, that method is gone forever, effectively binding future generations to the feelings of society that made that decision.
Seems like the pendulum can evolve in only one direction, here.
[QUOTE=mlees]
I have a question.
Some folks have said that they felt that “cruel and unusual” is an evolving concept, and I think it is on a practical level. After all, the death penalty as applied in the early days (death by hanging, death by firing squad) might be viewed today as cruel, as the convict may feel an unacceptable level of pain, or suffer through a lingering death in a botched attempt.
However, to rule that a particular method (say, death by firing squad) is unconstitutional in effect makes it unavailable forever. Who’s to say that in the future, the citizenry no longer feels that death by firing squad to be cruel and unusual?
With the inherent subjectivity of the phraseology, shouldn’t the various jurisdictions be allowed to decide for themselves what is cruel, and whether or not to ban certain forms of the death penalty?
For example, right now there is debate whether death by lethal injection is cruel. Some folks have floated the idea that, even though the convict is paralyzed and unable to communicate his/her distress, he/she still suffers. Reasonable people can disagree on whether the convict suffers, or suffers too much, just like reasonable people can disagree about the effectiveness or validity of the death penalty itself. Once some judge rules that lethal injection to be cruel and unusual, that method is gone forever, effectively binding future generations to the feelings of society that made that decision.
Seems like the pendulum can evolve in only one direction, here.
[/QUOTE]
What you said is very much what was said in the dissent written by Justice Alito. He said that prior court decisions had never said that the eighth amendment should be a “one-way ratchet” preventing new punishments.
This ruling outlawing child rape is self-affirming. Should a state 100 years from now try to legalize the DP for child rape, the Court could say “Only one state has legalized the DP for child rape, so 49 states think it is wrong” and strike down the law.
It is pretty much what happened here. An honest view of history would show that the DP was historically widely applied for rape. In 1972, SCOTUS nixed ALL DP statutes leaving the states to start over. In Coker, in 1977, they ruled that the DP for the rape of an adult woman was unconstitutional.
So, here are the states left in confusion as to what is allowed. They have a large disincentive to pass a DP law for child rapists because they know that they will have to spend big bucks defending it in court. (Read Alito’s dissent)
Then the majority in this case uses the fact that few states have DP laws for child rapists as grounds to say that there is a trend away from it. Well, no joke, there is a trend away from it because the Court has skewed it that way!
[QUOTE=villa]
How many of the current Court were appointed by Presidents who claimed to favor constructionist judges?
[/QUOTE]
More to the point, how many of the current Court were not the Presidents’ first choice(s) of judges? When constructionist judges were not approved by Congress, eventually the next one had to be “watered down” to be approved at all. Does the name “Robert Bork” ring a bell?
[QUOTE=Marley23]
I know everything Obama does is wrong, but he actually is pro-death penalty- a big problem for me, but apparently a good thing to you. Although I guess it isn’t anyway.
[/QUOTE]
Cite please. Her’s what I could find from Pew:
Obama says the death penalty “does little to deter crime” but he supports it for cases in which “the community is justified in expressing the full measure of its outrage.” While a state senator, Obama pushed for reform of the Illinois capital punishment system and authored a bill to mandate the videotaping of interrogations and confessions.
So will he appoint judges who allow the community to express their outrage?
BTW… I don’t think everything he does is wrong anymore than MSNBC thinks everything he does is right.
The death penalty use diminishes us all. It shows a baser and crueler society than we pretend to be. I feel horrible every time it happens. For many ,like Bush. underage, retarded ,does not matter. It is applied badly and many innocent get executed. I hate it.
[QUOTE=alphaboi867]
Aren’t a couple soldiers facing a death sentence for raping an Iraqi girl?
[/QUOTE]
There’s at least one former soldier facing the death penalty for raping and an murdering an Iraqi girl, alongside her entire family. I’m can’t recall any soldiers facing the death penalty for rape alone.
As a visceral reaction to the heinousness of their crimes, there are many criminals who make me think “The world is better off if they’re not in it.” As a procedural matter, I’m not comfortable with the death penalty because our current legal system has many flaws and so the possibility is there that someone could be executed either for a crime they didn’t commit or as disproportionate punishment for a crime they did commit. I’m not comfortable with expanding the death penalty to include child rape not because I think child rapists are swell people, but because I don’t feel more people should be subject to the death penalty in our flawed justice system.
The Death Penalty Worldwide This chart shows what countries have the death penalty. We are on a list with some horrible tyrants and oppressive societies.
[QUOTE=Marley23]
I know everything Obama does is wrong, but he actually is pro-death penalty- a big problem for me, but apparently a good thing to you. Although I guess it isn’t anyway.
[/QUOTE]
Keep in mind, though, that a Democratic candidate for prez who was anti-death penalty would never make it in the general election.
[QUOTE=gonzomax]
http://www.infoplease.com/ipa/A0777460.html This chart shows what countries have the death penalty. We are on a list with some horrible tyrants and oppressive societies.
[/QUOTE]
A lot of terrible people eat fish and wear sunscreen in July. That doesn’t mean we should stop ordering Halibut and start baking our skin in the sun, though.