Court considering rebriefing death penalty case
Discussion at the Volokh Conspiracy. It concerns Kennedy v. Louisiana, where the Court ruled that the death penalty for child rapists was cruel and unusual punishment, based in good part on finding a national consensus that it was too much. The majority noted that there was no federal law allowing such punishment, and only 6 of 30 States that have the death penalty allowed it, and mentioned that Congress, in establishing a federal death penalty, had not extended it to rapists of children.
The problem was that there was a federal (military code) provision for just that penalty, which neither side found or briefed. Ooops.
I don't get it. If the State chooses to punish criminals who commit a grotesque crime with death then why is that a federal issue? Don't commit that crime in those states. The States are supposed to have the majority of police power, right? Death is no more cruel and unusual than raping a child who has to live with that experience their whole life. How is it the death penalty was acceptable for horse thieves back in the day but not now for child rapists?
Posted by: Deavis at September 9, 2008 10:58 AM
well, for some people, the death penalty isn't acceptable at all.
Posted by: jon at September 9, 2008 11:50 AM
How many times has the court reheard cases, and of that how many times has the court changed it's decision?
Posted by: Thomas F at September 9, 2008 11:56 AM
I scanned but did not read that decision in detail, but based on my quick scan, there is much in the reasoning to disagree with.
It's also interesting how Stevens, in his Heller dissent, whined that the Court was overturning a law passed by the duly elected representatives of the people - a law that the people clearly felt was valuable in protecting them from violent criminals. Yet in Kennedy, he had no problem doing exactly that - overturning a state law passed by elected representatives, which people obviously wanted. And this in spite plenty of history in support of applying the penalty in such cases. And this case was pretty heinous.
OK, so don't give him the death penalty. A quick 2x4 to the back of the cranium reducing the creep to a vegetative state would be fine with me. Yeah, I guess I'm going Old Testament in a way...
Posted by: Bill at September 9, 2008 02:53 PM