Patterico's Pontifications


Supreme Court Brushes Aside Inconvenient Fact . . .

Filed under: General — Patterico @ 11:27 pm

. . . and, as predicted, upholds its ridiculous decision on the death penalty for child rape. Beldar has the details.

NOTE WELL: My complaint is not about the policy of the decision, but its horrible, horrible reasoning.

18 Responses to “Supreme Court Brushes Aside Inconvenient Fact . . .”

  1. Patterico, the trend of consensus obviously was heading towards more jurisdictions favoring DP for child rape, and the Court could have left out that sort of ‘reasoning’ that obviously was found after the conclusion was reached.

    But, I wonder how prosecutors feel about the death penalty as a practical matter. Do you think the death penalty for aggravated sexual assault would have led to fewer convictions, fewer reported rapes, fewer dollars available for other trials (and thus more deals), and generally fewer monsters behind bars, or do you think the leverage of this kind of punishment in seeking a confession is enough to make this sort of punishment at least a possible benefit?

    My view on this crime with that punishment is that its mere possibility greatly reduces the willingness of nieces or step-daughters or whomever to come forward and testify, makes it harder for juries to trust children witnesses, and wastes a lot of resources at the appellate level, and there’s no question this was a very poor policy for law enforcement.

    Just curious how people in the prosecuting profession feel about it, not that California was ever headed this way…

    Juan (4cdfb7)

  2. My objections, like Patterico’s, are to the Court’s reasoning in this and other Eighth Amendment cases. I’m answering your question only on my own behalf, however, Juan, and you may not be at all interested in my views since I’m not a professional prosecutor. Nevertheless:

    Were I a legislator, I would not vote in favor of authorizing the death penalty for rape, even the rape of a child. That’s so even though I’m a committed supporter of the death penalty as a possibility for capital murder cases.

    In jurisdictions that take the death penalty seriously and actually enforce it with regularity — which list does not include California — lawyers, trial judges, and appellate judges all develop greater expertise in capital cases. They make fewer errors that result in reversals. They do consume, on average, more resources, but that doesn’t play much if any part in my weighing of public policy.

    Rather, I don’t think there’s a sufficient variety of different circumstances in child rape cases to make it realistic to distinguish between “garden variety” and “particularly egregious” ones. There are, by contrast, all kinds of homicides, with the degree of culpability ranging over a huge spectrum. But even the notion of a “garden variety child rape” is a horrific concept. There are powerful prejudices involved in crimes against children, and consequently, in my subjective judgment, a greater likelihood that jurors will treat them all as satisfying the “aggravating circumstances” requirement still built into capital punishment jurisprudence since 1976. There’s also a danger, although I’m less troubled by it, that prosecutors might also be more likely to err in deciding when to threaten and charge capital rape than capital murder. The age cut-off also creates a problem of arbitrariness: Something that’s a capital crime when the victim is one day short of legal age suddenly becomes a non-capital crime on the victim’s birthday? Finally, there are other crimes against children that may be more brutal and with more tragic lasting consequences that nevertheless don’t include sexual penetration. How can rape be treated as justifying capital punishment, when a brutal beating that leaves a child a quadriplegic for life isn’t?

    I don’t think any of these rises to the level of a constitutional infirmity. As a matter of federal constitutional law, I’d permit state legislatures to do what Louisiana has done. I’m just saying that I’d vote against it if I were a legislator (or for that matter, veto it if I were a governor).

    Beldar (732de3)

  3. Beldar, I hadn’t considered how child rapes are always egregious and homicides have much more diversity of evil to them. That’s an excellent point.

    It’s a shame the Court has no interest in leaving policy to the legislators. I too would vote against this as a policy maker, but don’t see how the US Constitution forbids it.

    It’s just too hard getting the victims to come forward as it is without raising the stakes to death. How many more mothers will cover up these crimes to save their brother or husband’s life? As I say that, I realize I’m on a slippery slope. Even a normal conviction for child rape is the end of a person’s future. no one is more abhored than these criminals. That’s why I don’t think any further deterrent is possible except to ensure that as many children come forward as possible.

    Anyway, thanks for replying Beldar.

    Juan (4cdfb7)

  4. Following Furman, two states responded by making the death penalty mandatory for every murder. The Supreme Court struck those laws down. It said that it is up to the jury, looking at each individual defendant to decide whether what he did merits the death penalty. In essence, that there is no per se capital offense.

    There is both a legal and logical flaw in the concept that society cannot decide a crime is so horrible that it must always be punished by death. But death penalty jurisprudence has moved so far out of traditional American criminal jurisprudence since Furman that neither established legal principles nor even logic can be applied to it. Essentially, the Supreme Court has always had five justices since Furman with a distaste for the death penalty who have been doing their best to limit it or eliminate it altogether.

    nk (5335a4)

  5. I particularly liked Scalia’s response that confirmed my belief that the justices just make it up as they go along. They decide what outcome they want, then they (or more accurately, their clerks) go looking for rationales to support the desired outcome. Precedents and community standards are cited when they support the desired outcome, they’re discarded when they don’t.

    What surprises me is that the public goes along with this, that they accept decisions that are so obviously nothing more than the personal desires of, sometimes, as little as 5 justices.

    steve sturm (369bc6)

  6. But, I wonder how prosecutors feel about the death penalty as a practical matter. Do you think the death penalty for aggravated sexual assault would have led to fewer convictions, fewer reported rapes, fewer dollars available for other trials (and thus more deals), and generally fewer monsters behind bars, or do you think the leverage of this kind of punishment in seeking a confession is enough to make this sort of punishment at least a possible benefit?

    I don’t think the death penalty for child rape is a good idea. For one thing, I don’t want to remove any incentive to leave the child alive. For another, I think taking a life should be something that occurs, generally, only for the taking of a life. Also, I have concerns about the fact that innocent people have ended up on Death Row. I don’t want to see that problem compounded by cases where nobody was killed.

    Patterico (cc3b34)

  7. 6, Patterico, we have the Damm case here in Iowa where the DP isn’t the punishment for Child rape, but the predators are killing the kids to keep them from testifying against them. In light of that, why not the DP for Child rape as they are killing the kids anyway?

    PCD (1df2b5)

  8. America was a better place when Stealin a Mans horse got you hung. Yeah, I know Prisons Worse cause you get raped everyday for Life, but thats a bunch of crap. The tough guys rape the weak guys, don’t matter if you’re a child molestor or tax cheat.

    Frank Drackman (af2a6b)

  9. Though the Court has not exactly covered itself in glory with reasoning such as this, their real crime is the trend that they have introduced that makes punishment for any crime less likely.
    That is what drives the angst of the common man towards the Criminal (in)Justice System.

    AOracle (0e000d)

  10. America was a better place when Stealin a Mans horse got you hung.

    That is western mythology. “Hanging Judge” Parker hanged 79 men over a tenure of 20 years in Arkansas Territory and I seriously doubt any of the hangings were for horse-stealing.

    nk (5335a4)

  11. Who cares about the reasoning given by the Court?

    We all know the real reason: because they (Anthony Kennedy especially) just felt like it.

    No matter how much the facts change, AK’s feelings aren’t going to change. That’s why showing that facts were wrong doesn’t make a difference.

    * * *

    One thing we can still do: we can try to get laws passed authorizing the death penalty for child rape in 20-30 states, even though the laws would be unenforceable. When enough states say they want this, the Supreme Court would have to admit that Americans are okay with it.

    Daryl Herbert (4ecd4c)

  12. #8 Frank D, +1,000 on the hangin’ for horse stealin. One trial, one appeal, a hangman’s noose in the public square end of story period. As a former prosecutor of only six years I got to see one of the ugliest child rape and murder cases in the U.S. in the Nicarico case in DuPage County. Two guys are found guilty, then on appeal their convictions are overturned, then at new (separate) trials they’re found not guilty, they sue the County and win millions and then 5 law enforcement and Prosecutors are indicted for their role in the prior convictions, tried and aquited and now finally, the sorry excuse for a human being who we know actually raped the child, Dugan, (his sperm was in her anus), is finally going on trial for the rape and murder of this precious little 11 year old girl who no doubt went through Hell prior to being killed. It sucks! But damn it, we can’t let up on the bastards that do this type of a crime. In many ways I think that child rape is an even worse crime than murder. If the freely elected legislature determines that a type of crime is so horrendous that it may not must, but may, be punished by the ultimate punishment, so be it. I think that although one can make the argument that some child rapist (if the death penalty were available for child rape) might then just go ahead and kill the kid instead of letting the kid live, I think that there would also be those who knowing child rape could be punished by the death penalty might not commit the child rape. Who knows? Isn’t this all speculation! Who has any statistics on how many potential criminals didn’t commit the crime because of fear of punishment? Let me know if you know of any. From what I’ve seen crime rates go down when the prosecution and punishment go up. See John Lott. If the crime is severe enough, then justice demands that the punishment also be severe. So at the end of the day it comes down to each person’s personal beliefs. I say, kill the bastards who rape a child and kill them in the freakin public square for all to see what would befall them if they were to rape a child.

    J. Raymond Wright (d83ab3)

  13. Comment by J. Raymond Wright — 10/2/2008 @ 8:10 am

    One of the worst things done in the past was to remove capital punishment from the public square, to spare our sensibilities, to the confines of the penitentiary.
    Public execution is a messy, disgusting, ugly business. But, it is that ugliness that is a vital part of the process, in making a stark, vivid statement as to what awaits those that break the social compact.
    Those that would follow the “dark side” need the equivalent of the proverbial “Missouri Mule/2×4″ to get their attention, and convince them that they need to do better things with their lives.
    Justice Delayed (or avoided), is Justice Denied.
    In earlier times, cartographers would draw dragons on the edges of their charts to designate that which was unknown (stay away, they be monsters there), today we tempt the monsters of anarchy without a functioning system of punishment.

    AOracle (0e000d)

  14. Ever notice how lawyers seem able to make much more sense when discussing legal issues? Keep it up guys, I’m learning, slowly I’ll admit, but learning nevertheless. Thanks.

    Ropelight (1be620)

  15. #11: You’re right that the Court just felt like ruling this way, so why would it matter if 20-30 states passed laws counter to the decision? It wouldn’t matter if all 50 states were in favor, the justices would simply use some other rationale (international law? another previously undiscovered penumbra?) for overruling the state laws.

    steve sturm (369bc6)

  16. What about aggravated assault and torture?

    There are ‘child rape cases’ where it is fundamentally a statutory violation that leads towards primarily psychological trauma. But there are plenty of others where it is clearly a whole lot of notches more infuriating than “aggravated assault”.

    An eighteen year old isn’t going to kill the fifteen year old that he seduces. Murder is clearly far worse than being an ass.

    But in the gruesome cases, you will find people who will say “I’d rather be dead than go through that.” De facto slavery? Torture?

    Al (b624ac)

  17. I object.

    Your Honors, this is not reasoning, this is self-justifying rationalization.

    htom (412a17)

  18. I feel the same way about Brown v. Board of Education. Right decision, crummy argument.

    Fritz (6f6601)

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