Advanced Citizenship...

I heard the United States of America referred to as that in the movie "The American President" for the first time back in 1995. It was during the climactic part of the movie in which Michael Douglas' character (President Andrew Shepherd) makes a surprise appearance at the daily White House Press briefing, giving an impromptu speech to squash his political rivals' hope of winning the presidency, simultaneously winning back his environmental lobbyist girlfriend.

That movie, written by Aaron Sorkin (also created/wrote "The West Wing" for NBC TV), highlighted two amendments to the US Constitution, but treated them in very different ways. For those of you unfamiliar with Aaron Sorkin's work, he leans heavily to the left side of the political spectrum. That's not a slam on the man, for I am a great fan of his writing. It's just a simple fact, to which I'm sure he would agree. But I digress... President Shepherd pontificates on the virtues of the First Amendment. He preaches about how clearly it is stated that every citizen has the inalienable right to freedom of speech; while from the other side of his mouth, he says that in his crime bill he is going after handguns and assault rifles. I've always thought it rather amusing how the First Amendment is always deemed to be crystal clear and without gray area (the FCC's unilateral judgment of what is "obscene" or "indecent" notwithstanding), while the Second Amendment is deemed to be open for discussion and challenge. Obviously both amendments have been challenged on either side of their merits for as long as this country has been in existence, but it is part of the genius of our forefathers that the Supreme Court exists to "keep it real". However, it seems that as our politics continually become more polarized, legislation from the bench is a very real, present and inevitable occurrence.

A recent opinion, written by Justice Kennedy (joined by the left side of the court: Justices Souter, Breyer, Ginsberg, and Stevens), that reverses the imposing of the death penalty by the State of Louisiana in a child rape case misses the mark, in my opinion. The 8th Amendment, which is the cited legal basis of the majority opinion, provides for the prevention of cruel and unusual punishment.

The substance of the prevailing opinion is this...

"We cannot dismiss the years of long anguish that must be endured by the victim of child rape. It does not follow, though, that capital punishment is a proportionate penalty for the crime. The constitutional prohibition against excessive or cruel and unusual punishments mandates that the State’s power to punish “be exercised within the limits of civilized standards.”"

A laundry list of precedent was cited to sway the court. The 8th Amendment link above discusses much of the precedent cited in the recent opinion. In my opinion, the court(s) were wrong then, and they are wrong now.

I am extraordinarily disappointed in the court's failure to seize a prime opportunity to legitimize what I feel could be a useful deterrent to such heinous acts of horror on a child. Nowhere does the 8th Amendment to The Constitution refer to and mandate a "proportionate penalty". The notion that anything other than a proportionate penalty imposed constitutes "cruel and unusual punishment", particularly in instances as heinous in nature as the rape of an 8 year old girl, is ridiculous to me and offends me to the core of my being. Take some time to read the account of the child and the findings of her medical examination in the opinion and decide for yourself. It's horrifying. What's even more horrifying is the statistic put forth in the prevailing opinion that the incidents of rape of a child under 12 is nearly double the incidents of murder in all age groups. How does the court further reason the reversal of Louisiana's statute?

"But under respondent’s approach, the 36 States that permit the death penalty could sentence to death all persons convicted of raping a child less than 12 years of age. This could not be reconciled with our evolving standards of decency and the necessity to constrain the use of the death penalty. It might be said that narrowing aggravators could be used in this context, as with murder offenses, to ensure the death penalty’s restrained application. We find it difficult to identify standards that would guide the decision maker so the penalty is reserved for the most severe cases of child rape and yet not imposed in an arbitrary way. Even were we to forbid, say, the execution of first-time child rapists, see supra at 12, or require as an aggravating factor a finding that the perpetrator’s instant rape offense involved multiple victims, the jury still must balance, in its discretion, those aggravating factors against mitigating circumstances. 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“freakis[h],” Furman, 408 U. S., at 310 (Stewart, J., concurring). We cannot sanction this result when the harm to the victim, though grave, cannot be quantified in the same way as death of the victim."

It's obvious to me that none of the Justices have been raped. And we certainly must also thank them, in their infinite wisdom, for relieving juries of their charge to resolve these questions as part of their civic duty. Yes, note the sarcasm, please. What is the court afraid of? A rapist's blood on their hands? You can't convince me that the vast bulk of U.S. citizens would balk at allowing child rapists to be put to death, regardless of how it may inflate our execution numbers. Furthermore, if capital punishment is sanctioned by the state, and is deemed to be applicable to cases in which death of the victim does not necessarily occur (see its eligibility for drug kingpins), it would certainly seem to be applicable here. This seems like a lazy ruling to me.

In Justice Alito's dissent (joined by Chief Justice Roberts, Justices Scalia and Thomas), he discusses the challenge of crafting such a law that may be applied with consistency and would ultimately serve as an effective deterrent. Additionally he challenges the prevailing opinion's assertion of a lack of "moral consensus" to such a punishment for this crime.

"although state legislatures typically do not create legislative materials like those produced by Congress, there is evidence that proposals to permit the imposition of the death penalty for
child rape were opposed on the ground that enactment would be futile and costly."

"Aside from its misleading tally of current state laws, the Court points to two additional “objective indicia” of a“national consensus,” ante, at 11, but these arguments are patent makeweights. The Court notes that Congress has not enacted a law permitting the death penalty for the rape of a child, ante, at 12–13, but due to the territorial limits of the relevant federal statutes, very few rape cases, not to mention child-rape cases, are prosecuted in federal court. See 18 U. S. C. §§2241, 2242 (2000 ed. and Supp.V); United States Sentencing Commission, Report to Congress: Analysis of Penalties for Federal Rape Cases, p. 10, Table 1. Congress’ failure to enact a death penalty statute for this tiny set of cases is hardly evidence of Congress’ assessment of our society’s values."

"The Court also fails to mention that in Louisiana, since the state law was amended in 1995 to make child rape acapital offense, prosecutors have asked juries to return death verdicts in four cases. See State v. Dickerson, 01– 1287 (La. App. 6/26/02), 822 So. 2d 849 (2002); State v. LeBlanc, 01–1322 (La. App. 5/13/01), 788 So. 2d 1255;2005–1981 (La. Sup. Ct. 5/22/07), 957 So. 2d 757; State v. Davis, Case No. 262,971 (1st Jud. Dist., Caddo Parish, La.) (cited in Brief for Respondent 42, and n. 38). In two of those cases, Louisiana juries imposed the death penalty. See 2005–1981 (La. Sup. Ct. 5/22/07), 957 So. 2d 757; Davis, supra. This 50% record is hardly evidence that juries share the Court’s view that the death penalty for the rape of a young child is unacceptable under even the most aggravated circumstances."

And finally, his strongest point.

"In terms of the Court’s metaphor of moral evolution, these enactments might have turned out to be an evolutionary dead end. But they might also have been the beginning of a strong new evolutionary
line. We will never know, because the Court today snuffs out the line in its incipient stage."

Having a Supreme Court to tackle such issues are evidence that America is indeed "Advanced Citizenship". We see the alternatives every day in the news. I admire all members of the court, regardless of political affiliation, for their service to our country and I genuinely (perhaps naively) believe that each member serves the public trust to the best of their ability. However, when they get it wrong it is always disappointing. Should child rapists be eligible for the death penalty? In my opinion, absolutely. However, in this particular case, the assertion of the 8th Amendment was just too bitter a pill for me to swallow. Perhaps the 14th Amendment would have made a better argument... A post in itself for another time.