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Thursday, June 26, 2008
Right to bear arms, yes. Child rapist, no.
The Atlanta Journal-Constitution
Yes! In a 5-4 decision, this time with Justice Anthony Kennedy on the right side, the U.S. Supreme Court has decided that we have a right to keep and bear arms that is irrespective of service in a state militia. Got one right.
The U.S. Supreme Court’s 5-4 decision Wednesday overturning a Louisiana law that provided capital punishment for adults who rape a child — in this specific case, a man who brutally raped his 8-year-old stepdaughter — has a kind of Catch-22 reasoning.
Wrote Justice Anthony Kennedy in the majority opinion:
” The evidence of a national consensus with respect to the death penalty for child rapists, as with respect to juveniles, mentally retarded offenders, and vicarious felony murderers, shows divided opinion but, on balance, an opinion against it. Thirty-seven jurisdictions—36 States plus the Federal Government—have the death penalty. As mentioned above, only six of those jurisdictions authorize the death penalty for rape of a child. Though our review of national consensus is not confined to tallying the number of States with applicable death penalty legislation, it is of significance that, in 45 jurisdictions, petitioner could not be executed for child rape of any kind…
“We conclude on the basis of this review that there is no clear indication that state legislatures have misinterpreted [an earlier decision, Coker v. Georgia, that banned capital punishment for raping adults] to hold that the death penalty for child rape is unconstitutional. The small number of States that have enacted this penalty, then, is relevant to determining whether there is a consensus against capital punishment for this crime…
“After reviewing the authorities informed by contemporary norms, including the history of the death penalty for this and other nonhomicide crimes, current state statutes and new enactments, and the number of executions since 1964, we conclude there is a national consensus against capital punishment for the crime of child rape.”
An argument commonly used by death penalty opponents in state legislative debates is that,under Coker, laws applying to the rape of children would be unconstitutional. That argument carried the day in most legislatures. So now?
Five members of the court find national consensus in the failure of legislatures to extend capital punishment to those who rape children. Wrote Justice Samuel Alito for the dissenters:
“The Court provides two reasons for this sweeping conclusion: First, the Court claims to have identified ‘a national consensus’ that the death penalty is never acceptable for the rape of a child; second, the Court concludes, based on its ‘independent judgment,’ that imposing the death penalty for child rape is inconsistent with ‘the evolving standards of decency that mark the progress of a maturing society.’ …neither of these justifications is sound…
“In assessing current norms, the Court relies primarily on the fact that only 6 of the 50 States now have statutes that permit the death penalty for this offense. But this statistic is a highly unreliable indicator of the views of state lawmakers and their constituents.”
The lesson here? In the absence of consensus among experts, legislators should never be swayed by arguments made by those who insist that a proposed law will be ruled unconstitutional. That’s an argument frequently applied in a whole range of circumstances by minorities attempting to carry the day, or by bureaucrats who attempt to influence public policy.
In this instance, the failure of states to act is taken as evidence that an emerging national consensus has developed on this issue.
Concluded Alito for the dissenters:
“The Court is willing to block the potential emergence of a national consensus in favor of permitting the death penalty for child rape because, in the end, what matters is the Court’s ‘own judgment’ regarding ‘the acceptability of the death penalty.’ Although the Court has much to say on this issue, most of the Court’s discussion is not pertinent to the Eighth Amendment question at hand. And once all of the Court’s irrelevant arguments are put aside, it is apparent that the Court has provided no coherent explanation for today’s decision.”
The five members who prevailed had a conclusion in mind — and found a “national consensus” route to get there.
Now ask again: What are the stakes in this presidential election? Two or three of those who joined Kennedy are expected to retire over the next eight years.
