Patterico's Pontifications

5/28/2015

Nebraska Bans Death Penalty, Setting Stage for Anthony Kennedy to Ban It Nationwide

Filed under: General — Patterico @ 7:44 am

Nebraska has voted to abolish the death penalty, and the legislature has overridden the governor’s veto to reaffirm the ban.

I support the death penalty, but I also support the right of the people of a state to decide how to punish murderers.

Here’s the problem. Under the “evolving standards of decency” travesty perpetrated on the nation by Anthony Kennedy and the leftists on the Court, votes like this could result in a court-imposed, nationwide ban. Under this doctrine, which has no support in the text of the Constitution, any slight movement by local entities towards abolishing a particular punishment is instantly converted into an emerging consensus that must be imposed on the entire country by Kennedy and his fellow travelers.

That’s what he did with the death penalty for juveniles and those deemed even mildly retarded. In each case, a handful to states abolished the death penalty for defendants falling in those categories, and Kennedy decided that this slight movement justified his using his Emperor-like powers to deprive other states of the ability to make their own judgments. Now a monster who is a day shy of his 18th birthday, or who can convince a court that he is mildly retarded, can avoid death for his crimes — all thanks to the made-up doctrine foisted on the nation by the arrogant Kennedy.

If enough state legislatures ban the death penalty outright, Kennedy will do away with it for the rest.

You read it here first.

39 Responses to “Nebraska Bans Death Penalty, Setting Stage for Anthony Kennedy to Ban It Nationwide”

  1. I have no reason to reconsider my opinion from 2008:

    Kennedy is smug and patronizing; a toady to elite opinion. He is serenely indifferent to the chaos and turmoil his poorly reasoned decisions cause to the legal system. His flowery and meaningless language provides litle guidance to lower courts, which are often thrown into confusion by his obtuse phrases — but no matter. The key is to be quoted in the New York Times, rather than to be understood by the judges who must carry out his diktats.

    I was right.

    Patterico (3cc0c1)

  2. Is it bad that I am rapidly reaching the “Don’t care” point on this? I have so little faith in our government (local, state, federal) generally that I don’t trust them to properly administer the death penalty in the first place. If they were more trustworthy, open, and accountable to us than they are, and actually executed people instead of leaving them and justice to linger on death row for 20-30 years then I’d be more comfortable with the state having the power to execute people. Now? not so much.

    lurkingestlurker (26ac75)

  3. This despite the fact the death penalty is specifically provided for in the Fifth and Fourteenth Amendments? IANAL, but my reading of those amendments means the death penalty is inherently constitutional, Eighth Amendment ban on cruel and unusual punishments notwithstanding.

    Please note I agree with your assessment, Pat. I just think the language of 5 and 14 should put the kibosh on that. Then again, this is Kennedy and the leftists we’re talking about.

    Jeff Lebowski (d29ad1)

  4. How many people have been executed in the last decade? How many convicted murderers are there?

    There is no effective death penalty in the United States. And there is precious little real justice.

    Amphipolis (d3e04f)

  5. i’m with Mr. lurker

    failmerican justice is not trustworthy enough for to let them have a death penalty

    they were given numerous chance to prove they could handle the responsibility

    and so much for that

    plus it’s way too expensive for a sad little country what is in such a pitiful and embarrassing financial situation

    happyfeet (831175)

  6. *chances* i mean

    happyfeet (831175)

  7. About time to move the goalposts; shift the Overton Window.

    Once our “betters” declare capital punishment to be illegal, how long before they start going after life sentences without parole? 10 years tops.

    We as a society are on the verge of collapse. It’s going to be a bumpy ride.

    njrob (a048a4)

  8. No it’s not njrob, it’s gonna be a f5ckin’ plunge.

    Hoagie (f4eb27)

  9. Related. Bill Otis responds to George Will’s poorly reasoned* op-ed in the WaPo.

    http://www.crimeandconsequences.com/crimblog/2015/05/george-wills-limp-case-against.html

    George Will’s Limp Case Against the Death Penalty

    * George Will attempts to advance the “conservative case” against the death penalty. And does so poorly at it that he demonstrates there is no conservative case against the death penalty. Which is typical for pundits when they try to pretend there is a “conservative case” for adopting a position that is in no way conservative. I can understand the impulse some talking heads (not just Will) have to slap together the “conservative case” for adopting every liberal position under the sun (i.e. the “conservative case” for a carbon tax) but that doesn’t make it any less laughable when they foolishly give in to that impulse and embarrass themselves.

    Steve57 (4f6474)

  10. I agree Hoagie. I just had to stick with the colloquialism.

    It’s going to be bloody.

    njrob (a048a4)

  11. On what pretext? “Cruel and unusual”? That’s the constitutional ban.

    Good thing they didn’t pick “or”…

    mojo (a3d457)

  12. holy moly we have to catch the hackerz

    we should run a diagnostic

    happyfeet (831175)

  13. on the linux box

    happyfeet (831175)

  14. The response of Bill Otis to George Will was classic. And I loved his response to me.yahoo. Thanks for the link Steve57.

    Hoagie (f4eb27)

  15. I’m now waiting for George Will to write an op-ed making the “conservative case” for wealth redistribution.

    Steve57 (4f6474)

  16. There is no effective death penalty in the United States. And there is precious little real justice.

    No effective judicial death penalty. There’s plenty of extra-judicial cases.

    Self defense becomes even more important when the justice system won’t deal with criminals justly.

    I’m not encouraging people to wantonly shoot criminals, but if someone threatens your life you should act accordingly.

    egd (1ad898)

  17. Is it bad that I am rapidly reaching the “Don’t care” point on this? I have so little faith in our government (local, state, federal) generally that I don’t trust them to properly administer the death penalty in the first place. If they were more trustworthy, open, and accountable to us than they are, and actually executed people instead of leaving them and justice to linger on death row for 20-30 years then I’d be more comfortable with the state having the power to execute people. Now? not so much.

    Was it like this in the 19th century?

    Michael Ejercito (d9a893)

  18. What we need is abolition of the Eighth Amendment, not abolition of capital punishment.

    Michael Ejercito (d9a893)

  19. Was it like this in the 19th century?

    What does that comment mean, Michael Ejercito?

    Hoagie (f4eb27)

  20. Let’s say a Nebraskan murderer is paroled after many years in prison. Not forgiven, but instead released upon his own recognizance with the provision he sins no more. IN effect this is the State of Nebraska vowing that Prisoner XYZ will not kill anyone else. They promise.

    When/if Prisoner XYZ travels to Kansas and murders a farmer and his family what is Nebraska’s liability?

    papertiger (c2d6da)

  21. I agree that the “evolving standards of decency standard” — which is no “standard” at all — is thinly disguised code for “making sh*t up and pretending it’s in the Constitution.”

    Doctrines like that completely undercut the distinction between constitutions and statutes, and beyond that, they put the power into the hands of judges instead of legislators and executives.

    That’s a very bad thing.

    Beldar (fa637a)

  22. Evolving standards is more leftist newspeak like Living Constitution. All garbage.

    Hoagie (f4eb27)

  23. My main problem with Kennedy’s theory is that surely standards can evolve in both directions. If n states banning something is a sign that the “cruel and unusual” bar has moved and the punishment is now unconstitutional everywhere, then how are we to know when the bar has moved back to where it was?

    For instance, suppose there were a shift in public opinion to support executing 17-year-old murderers, or murderers with IQs of 65. What could a state do about it? Pass a law authorizing such executions, knowing that all federal courts would be legally obligated to strike it down, but hoping that if enough other states did the same we’d cross the same line in the opposite direction, and suddenly it would become constitutional everywhere?

    And then what? Would states that never repealed their old laws have to re-enact them, or would they automatically become law once again? And what about states that changed their laws only because they were told they had to? Presumably they’d have to change them back.

    Milhouse (bdebad)

  24. Milhouse, you gave a great example as to why standards cannot “evolve”. Standards are set. They are not up to the whims of a court or even a majority. That’s why we have a damn Republic and not a democracy.

    Hoagie (f4eb27)

  25. it seems the standards are devolving, so it is more likely that innocent civilians will be murdered, and the perpetrators will be less likely to be made accountable, case in point,
    charles manson, who slipped through the furman window,

    narciso (ee1f88)

  26. I look for Hastert to move to the cornhusker state.

    mg (31009b)

  27. With 70 percent of Nebraskans favoring the death penalty, there’s going to be some turnover in the Unicameral in 2016.

    Yossarian (5999be)

  28. it seems the standards are devolving, so it is more likely that innocent civilians will be murdered, and the perpetrators will be less likely to be made accountable, case in point,
    charles manson, who slipped through the furman window,

    why can not the initiative process be used to sentence Manson to death?

    Michael Ejercito (d9a893)

  29. What does that comment mean, Michael Ejercito?

    did death penalty appeals take this long in the 19th century?

    Michael Ejercito (d9a893)

  30. Manson, which I’m reminded because of the aquarius series, 13 episodes! would have qualified if not for the Furman decision, subsequently they tried the Baldus study, on the application of the death penalty, to try to get rid of it, now they seem to have succeeded through inertia, and the requisite drug suppression,

    narciso (ee1f88)

  31. I doubt it Michael Ejercito. Fewer laws, fewer lawyers fewer technicalities. But I’m sure more innocent people were hanged than today. OTOH, for the guilty justice was swift and sure. And for the family of the victims closure came quickly.

    Hoagie (f4eb27)

  32. I doubt it Michael Ejercito. Fewer laws, fewer lawyers fewer technicalities. But I’m sure more innocent people were hanged than today. OTOH, for the guilty justice was swift and sure. And for the family of the victims closure came quickly.

    Clearly, not all change is good. We need to go back to the 19th century regarding the death penalty.

    Michael Ejercito (d9a893)

  33. Clearly, not all change is good. We need to go back to the 19th century regarding the death penalty.

    Michael Ejercito (d9a893) — 5/28/2015 @ 7:33 pm

    Well damn, Michael. Why stop at the 19th Century. Just the right amount of judicial punishment for you? Heck, let’s glue that reset button down and run it all the way back to the 1st Century. Crucifictions for everybody! The smallest infractions dealt with swiftly and severely, if mistakenly.

    I believe we need a death penalty. I also believe it should be rare, even if it is meted out considerably faster than the current continental drift mode it seems stuck in. Your statement to dial it back to the 19th Century way of doing things seems a bit…I’ll be kind and say wrong.

    Bill H (2a858c)

  34. The only decision I recall hinging only on Kennedy was his partial concurrence in Kelo. Every other decision his vote counted the same as any other.

    As to the quality of his opinions, it seems about average for the past century or so, rather banal for the most part. Even the oft-quoted Holmes was the author of some terrible work.

    But it seems he may have poisoned your dog or something, so the animus is understandable.

    Estragon (ada867)

  35. Well damn, Michael. Why stop at the 19th Century. Just the right amount of judicial punishment for you? Heck, let’s glue that reset button down and run it all the way back to the 1st Century. Crucifictions for everybody! The smallest infractions dealt with swiftly and severely, if mistakenly.

    I believe we need a death penalty. I also believe it should be rare, even if it is meted out considerably faster than the current continental drift mode it seems stuck in. Your statement to dial it back to the 19th Century way of doing things seems a bit…I’ll be kind and say wrong.

    The difference between the 1st century and the 19th century was that, obviously, the United States Constitution, including the 5th, 6th, 8th, and 14th Amendments, existed in the 19th century.

    Michael Ejercito (d9a893)

  36. And as soon as the death penalty is abolished they will argue just as ferociously for ending “life without parole.”

    I repeat what I have observed for decades. The “anti-death penalty” crowd is not bothered one iota by the horrors committed by dead-bang guilty unrepentant murderers.

    DN (78a7ed)

  37. Changing the way the Constitution is interpreted because of “evolving community standards” is erroneous on its face. It the community standards have evolved to a different place, the community can amend the Constitution to reflect that. It is not the job of “9 justices in robes” to decree when public opinion has changed relative to the Constitution. Such decrees directly violate the very principle of a written Constitution: we are governed by a set of rules agreed in advance, not by whatever a group of men believes is appropriate at the time.

    Ken in Camarillo (061845)

  38. Changing the way the Constitution is interpreted because of “evolving community standards” is erroneous on its face. It the community standards have evolved to a different place, the community can amend the Constitution to reflect that. […] Such decrees directly violate the very principle of a written Constitution: we are governed by a set of rules agreed in advance, not by whatever a group of men believes is appropriate at the time.

    The theory which the majority of the Supreme Court has adopted is that the 8th amendment incorporates community standards, and thus its application must change with the times.

    Take the infamous Davis-Bacon act, which requires government contractors to pay their workers the prevailing wage. Nobody would claim that the wage it requires remains fixed at whatever prevailed in 1931, and that Congress must amend it each time the standard changes. No, everyone agrees it’s a moving standard, and changes automatically with the general wage level. So a wage that was acceptable in 1931 is very unacceptable in 2015, although Congress has not changed the law.

    Well, why can’t the 8th mean the same thing? I’m not arguing that it does, but that this is a plausible theory, and the majority wasn’t unreasonable in adopting it. My main objection is that in practise it works like a ratchet. It only allows “community standards” to move in one direction, so they will keep moving in that direction forever.

    Milhouse (a0cc5c)


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