Posted by WLS:
The majority opinion in Kennedy v. Louisiana (appropriate irony) authored by Justice Kennedy is a stunning exclamation point on the Court’s move this term of impose itself as the unelected sovereign dominant over all things eminating from the political branches of the various governmental entities of the United States of America. This capstone sentence near the end of the opinion is all you need to read and absorb to fully appreciate the complete absence of guiding constitutional principle underlying the liberals+Kennedy with respect to their view of their place vis-a-vis the representative democratic branches of the governmental units:
“Each of these propositions, standing alone, might not establish the unconstitutionality of the death penalty for the crime of child rape. Taken in sum, however, they demonstrate the serious negative consequences of making child rape a capital offense. These considerations lead us to conclude, in our independent judgment, that the death penalty is not a proportional punishment for the rape of a child.”
Got that? The “propositions” mentioned are a variety of policy arguments, not one of which has any relationship to the language of the Eighth Amendment which prohibits “cruel and unusual” punishment. No one “proposition” standing alone makes the death penalty for child rape “cruel and unusual” in a constitutional sense. But all of them considered together do.
Their “independent judgment.” F*ck all those elected officials in whom the voters have vested the authority to exercise judgment on their collective behalf. Frankly, I can’t believe no Justice in the majority suggested to Kennedy that he remove the “our independent judgment” language. But, then again, maybe they wanted it exactly the way Kennedy wrote it — no time for subtlety.
A few of the more precious bon mots of enlightenment courtesy of Justice Kennedy:
“When the law punishes by death, it risks its own sudden descent into brutality, transgressing the constitutional committment to decency and restrait.”
“It is an established principle that decency, in its essence, presumes respect for the individual and thus moderation or restrait in the application of capital punishment.”
“In this context, which involves a crime that in many cases will overwhelm a decent person’s judgment, we have no confidence that the imposition of the death penalty would not be so arbitrary as to be ‘freakish'”.
“Evolving standards of decency are difficult to reconcile with a regime that seeks to expand the death penalty to an area where standards to confine its use are indefinite and obscure.”
“The incongruity between the crime of child rape and the harshness of the death penalty poses risks of overpunishment and counsels against a constitutional that the death penalty can be expanded to include this offense.”
“It is not at all evident that a child rape victim’s hurt is lessened when the law permits the death of the perpetrator.”
“Society’s desire to inflict the death penalty for child rape by enlisting the child victim to assist it over the course of years in asking for capital punishment forces a moral choice on the child, who is not of mature age to make that choice. The way the death penalty here involves the child victim in its enforcement can compromise a decent legal system; and this is but a subset of fundamental difficulties capital punishment can cause in the in the administration and enforcement of laws proscribing child rape.”
But, lest he be too solicitous of the child victim’s welfare, Kennedy next rips children as testifying witnesses:
“The problem of unreliable, induced, and even imagined child testimony means there is a “special risk of wrongful execution” in some child rape cases.” (Citing the ever reliable National Association of Criminal Defense Lawyers brief.)
“In most cases justice is not served by terminating the life of a perpetrator rather than confining him and preserving the possibility that he and the system will find ways to allow him to understand the enormity of his offense.”
What a beautiful sentiment. We as taxpayers pay hundreds of millions of dollars every year to incarcerate pedophiles so that they, with the help of the “system,” might finally understand the error of their ways.
What kind of society is it that wants to cut off such meaninful and important efforts at self-enlightenment by something so barbarian as imposing the death penalty on a man who raped his 8 year old stepdaughter so savagely that a laceration to the left wall of the vagina had separated her cervix from the back of her vagina, causing her rectum to protrude into the vaginal structure. Her entire perineum was torn from the posterior fourchette to the anus.
Fortunately for all of us, he might now get the help he was so obviously crying out for courtesy of the Louisiana prison system.
**Update: Barack Obama has come out against the Court’s decision today:
“I have said repeatedly that I think that the death penalty should be applied in very narrow circumstances for the most egregious of crimes,” Obama said at a news conference. “I think that the rape of a small child, 6 or 8 years old, is a heinous crime and if a state makes a decision that under narrow, limited, well-defined circumstances the death penalty is at least potentially applicable, that that does not violate our Constitution.”
I wonder if that means that Obama thinks Roberts and Alito are better models for future Supreme Court appointments than Ginsburg and Breyer?