Patterico's Pontifications


Louisiana Seeks Rehearing of Decision on Death for Child Rape

Filed under: Court Decisions,Crime,General — Patterico @ 6:26 am

Ed Whelan reports on Louisiana’s effort to get the Supreme Court to re-hear the case that found unconstitutional the death penalty for child rape. You may recall that, in dishonestly finding a national consensus (one so overwhelming that both presidential candidates rushed to denounce the decision), the Court’s chief gasbag Anthony Kennedy completely missed the federal government’s approval of exactly that penalty for exactly that crime in passing amendments to the Uniform Code of Military Justice.

Here’s a quote from the attorney who filed the petition for rehearing:

I am personally opposed to the death penalty, but I am also opposed to courts taking fundamental decisions away from American voters…. Since the Supreme Court’s decision came down, new evidence has emerged that the justices may have been too quick to identify a national consensus in this case, so when the State of Louisiana gave me the chance to help, I was happy to accept.

Good for him.

26 Responses to “Louisiana Seeks Rehearing of Decision on Death for Child Rape”

  1. For the record, the attorney who signed on as counsel of record for the rehearing petition is Prof. Neal Katyal of Georgetown Law, a former Breyer clerk who argued Hamdan on behalf of bin Laden’s driver. No knee-jerk conservative, he.

    NYC J.D. (b06dde)

  2. not being a lawyer, once SCOTUS decides that a consensus formed at the time of a decision is the law, then how can a new consensus be formed that is different in the future? I thought that a “living constitution” was to change with the attitude and consensus of the people, but with this decision that cannot happen. just wondering

    rwallis (dda37e)

  3. rwallis, the game is rigged. With the Court’s “evolving standards of decency” approach to the Eighth Amendment, the standards are only ever deemed to have evolved in one direction.

    NYC J.D. (b06dde)

  4. I thought that a “living constitution” was to change with the attitude and consensus of the people

    That consensus is supposed to be “of the people” not “of those nine unelected people with lifetime appointments”.

    And the consensus they quote is not one of the American people. Polls prove that a majority of American would approve of even harsher measures than what the SCOTUS majority in the previous decision (read: Kennedy) had overruled.

    The Supreme Court has said – repeatedly – that the Constitution allows for the death penalty. There are certain offenses that are so reprehensible that the State has the right to punish the perpetrator in the harshest manner possible. Raping one’s own child in such a way as to require surgical intervention to save her life is an act that the laws of Louisiana have defined as worthy of such a punishment.

    The imposition of that penalty is less painful than what he did to that little girl. He will just go to sleep and never wake up. She will have to live with the consequences of his action for the rest of her life.

    Drumwaster (5ccf59)

  5. it isn’t a “national consensus” until i’ve signed on, and i favor the execution of child rapists promptly after trial, not 20 years after trial.

    assistant devil's advocate (314f54)

  6. it isn’t a “national consensus” until i’ve signed on

    The liberal mindset in a nutshell…

    Drumwaster (5ccf59)

  7. ok I have trouble making myself understood, once the decision is made by SCOTUS the people cannot make new laws that are not in accordance with that decision – preventing a new consensus. and since SCOTUS uses the prevailing laws to decide the consensus this sets in “stone” the consensus of that time preventing any new consensus from forming, to heck with it I am not astute enough to understand this stuff

    rwallis (dda37e)

  8. Any bets on whether or not Kennedy will approve Cert?

    JD, not a J.D. (75f5c3)

  9. They’ll deny rehearing for sure. But good for Louisiana for at least giving it a try. And good for the blogger who exposed the Court’s error.

    rwallis–you’ve hit the nail on the head. That is what Chief Justice Roberts was talking about at oral argument, and Justice Alito hits on it in his dissent.

    Alan (0cf397)

  10. Showing a “national consensus” won’t be a problem. Just let the commie pollsters handle it and they will give you any numbers you want.

    j curtis (c84b9e)

  11. Oh, don’t do that. We’ll end up with a “national consensus that “proves” that we should not only set them free, we should pay for the treatment sessions needed to readapt these monsters to society.

    Look at the uproar over Tookie.

    Drumwaster (5ccf59)

  12. Alan,

    I do not understand the process for Cert. How many does it take to accept? Wouldn’t you think that Thomas, Alito, Roberts, Scalia would love to have a crack at this ruling again?

    JD, most certainly not a J.D. (75f5c3)

  13. How many does it take to accept?

    Five of the nine have to accept it for re-hearing, which means at least one of the five members of the majority opinion will have to agree to a “do over”, even if they don’t change their collective opinion in the end.

    Drumwaster (5ccf59)

  14. Lousiana should just go ahead with the execution, Supreme Court be damned.

    After all, D.C. is doing its best to flout the Heller decision.

    After all, if it is okay for D.C. to ignore the Supreme Court ruling, then it is okay for Louisiana to ignore the Supreme Court ruling.

    Michael Ejercito (a757fd)

  15. Lousiana should just go ahead with the execution, Supreme Court be damned.

    If Jindal ordered the execution to proceed anyway, what kind of power does the SCOTUS have to enforce its decisions?

    Can they issue a bench warrant? Hold the Governor in contempt? Fine him?

    Or is their power only effective as long as both sides to the disagreement choose to accept the ruling, no matter how foolish it ends up being?

    Drumwaster (5ccf59)

  16. I often debate on Usenet. As the Lone Weasel pointed out,

    “I’ll tell you this – when the Court gets an opinion like
    Scalia’s so completely wrong, it’s ignored until the Court
    overturns it or Congress enacts legislation to make it
    superfluous, ie overturned by statute.”

    Michael Ejercito (a757fd)

  17. What happened to “Thou Shall Not Kill”??

    What’s wrong with putting this man in jail for the rest of his life?

    Oiram (983921)

  18. What happened to “Thou Shall Not Kill”??

    We are not a theocracy.

    If we were, the following would be law:

    “If a man also lie with mankind, as he lieth with a woman, both of them have committed an abomination. They shall surely be put to death; their blood shall be upon them.”

    Michael Ejercito (a757fd)

  19. What’s wrong with putting this man in jail for the rest of his life?

    Because that is not the punishment chosen by a jury of his peers, and because the Constitution allows for the death penalty for certain crimes, after due process has been observed.

    The State of Louisiana did everything right – they caught the guy, prosecuted him according to the rules of evidence, obtained a conviction, held a separate sentencing trial, got the death sentence, and then had that sentence upheld right up until the Nine in DC on a 5-4 decision based on a faulty premise (the alleged lack of a “national consensus”, which is NOT a requirement of law).

    The system was subverted by someone who has already shown his contempt for national laws (in favor of foreign rulings), and you don’t see anything wrong with this?

    Wait, I forgot that I wasn’t talking to a rational being who actually cares about the facts.

    Short version: because that’s the way it is.

    Drumwaster (5ccf59)

  20. What happened to “Thou Shall Not Kill”

    Second, what version of the Bible says this? My version says “Thou Shalt Not Commit Murder”, which is MUCH different.

    There are several crimes in the Bible, in the chapters immediately following the Decalogue, that get the death penalty. I would imagine that savagely raping a child would rank right up there…

    Drumwaster (5ccf59)

  21. Well we elected the officials that choose our supreme court………. and that’s the way that is.

    I happen to be against the death penalty and am happy to see him spend the rest of his life in the tank.

    Oiram (983921)

  22. What happened to “Thou Shall Not Kill”??

    Nothing, aside from it being watered down beyond belief. Violating the original “thou shalt not kill” rule got you an easy death sentence. Whatever happened to that?

    Xrlq (b71926)

  23. No surprise that Oiram is good with this. Having an activist Court acting in the place of the Legislature is a utopia for the Leftists. Process be damned, it is all about the results.

    JD (5f0e11)

  24. Tell that to all of your people who want to overturn Roe Vs. Wade class guy.

    Sorry, I mean the 25% of your people you depend on like a fish depends on water.

    Oiram (983921)

  25. Tell that to all of your people who want to overturn Roe Vs. Wade class guy.

    Just to see if you are paying attention, what will happen when Roe v Wade is overturned?

    Do you even know how the system works?

    (And are you seriously claiming that only 25% favor the overturn of Roe v Wade? Then why not put it on the ballot and see what the American people REALLY think?)

    Drumwaster (5ccf59)

  26. “What happened to “Thou Shall Not Kill”??

    What’s wrong with putting this man in jail for the rest of his life?

    Comment by Oiram — 7/23/2008 @ 8:50 am”

    The Hebrew translates as thou shall not murder.
    Your opinion is of no value. It is the opinion of the people of the State of Louisiana expressed through their legislature that is of value.

    But if it makes you happy, they ought to administer the rapist a retroactive partial birth abortion.

    The Governor of Louisiana ought to sign the warrant and have the scum killed. It is time to strip the court of its false powers that are not enumerated in the Constitution. If Jindal were to do just that, the court would cave rather than risk its whole edifice since Marbury vs Madision blown out of the water. No president will carry that water for the court, even Obama. There is no state that if the proposition were put to the public as a referendum to either re-impose the death penalty or to speed up the needless delays where there are no issues of guilt that such a proposition would fail to win.

    The first Governor to do that and tell Congress to fuck off with their unfunded mandates on the States will a near metaphysical landslide winner in 2012 election for president.

    Obama has jumped the shark. Even as inept a candidate as McCain will beat him like a drum in November. He is an attractive empty suit who can read a teleprompter. Well qualified to be a TV “news” anchor, not a president. When his handlers have to muzzle the lapdog MSM around him that is all one needs to know about him and his qualifications to be president.

    cubanbob (409ac2)

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