The Supreme Court has struck another small blow against the savage madness that is capital punishment.
One way I know I’m not a conservative: when I read Anthony Kennedy’s reference today to “evolving standards of decency”, I got a chill of satisfaction down my spine. My conservative friends argue for the timelessness of standards, of an enduring natural law written in our hearts. I am grateful that by the most tenuous of threads, that of a single life, the balance of our Supreme Court remains in the hands of those who believe that our ancestors did not always know best, and that what was good and prudent in the past may be shockingly immoral in the present.
Hurrah for Justice Kennedy. The wisdom of blocking the disastrous nomination of Robert Bork 21 years ago is proved right again.
Even if you’re a conservative proponent of the “eye for an eye” standard of retribution, the death penalty for child rape is NOT eye for an eye. I think, regardless of my thoughts on the death penalty as a whole (they’re complicated), only allowing death in exchange for another death is a sensible and workable rule.
I know a few victims of childhood sexual assault. And I know that at least one of them will find this decision offensive. But it seems from the article you linked that no state in the U.S. has been in the business of executing anyone for rape in a very, very long time, and that condeming child rapists to death is extremely rare. So we’re not ridding ourselves of a tool for punishing child rapists but rather officially affirming what society has already deemed appropriate.
Funny how “evolving standards of decency” are only allowed to evolve one way. Twenty years ago, we didn’t have the death penalty for child rape; legislators began passing such measures in response to the increasing awareness of the number, depth, and savagery of such crimes. Their understanding of what was decent evolved.
But apparently not in the “acceptable” direction.
If the state will not fulfill its obligation to the citizenry, the citizenry will handle matters directly. That will involve far more error and suffering than would be the case if the state did its job, instead of indulging liberal sentimentalism, but oh well.
I think that the decision is probably correct in all, the dissenters (Alito’s) concerns about the circular effects that Coker and other precedents had on the legislative processes of the states and thus the “indicia of national consensus” notwithstanding. I’m a little concerned, though, that undermining any distinction of child victims as a class might at some point also undermine less-severe (non-capital) but nonetheless valuable laws that deal with such crimes more severely (California gives out 15 to life, consecutive per offense, for aggravated sexual assault of a child under age 14. Nevada has life without parole for the same offense). There’s also the question of non-homicide cases (e.g. espionage, treason), though the majority opinion made a clear distinction for cases of crimes against individuals.
If the state will not fulfill its obligation to the citizenry, the citizenry will handle matters directly.
Robert, which obligation to citizenry do you refer to here? Protection? Because, for that purpose, putting someone away for life with no parole does the same thing as putting them to death.
I’m hard pressed to come up with anything that says the government has any obligation to carry out retribution and revenge for its wronged citizens, or to kill those who don’t conform to its laws.
And while you say legislators have passed death penalty measures in response to increasing awarness of the crimes, the article Hugo links says a “small” number of states did so, and that no one has been executed for a non-death crime since 1964. Even if legislators put the punishment on the books, almost no final decisionmaker has ever decided that it was decent to use the laws - the article says there are two people out of 3,300 on death row who are there for something other than murder.
2 out of 3,300, and no one executed for something other than murder in the last 44 years. Clearly our understanding of what was decent did NOT evolve in the direction you suggest.
It’s been trying to, but judges have decided that their opinions are more important than our opinions.
If the government does not do what the citizens think it should, the citizens will either do it themselves, or change the government.
A hundred years ago, nobody thought the government should provide a program like Social Security. The citizenry, through its legislators, changed it.
Then there is vigilantism.
In addition to the Home-castle doctrine from which no retreat is necessary, some states have passed no-back-down laws saying one is not required to retreat or flee (or try to) while in public before using deadly force in self defense. So you can see that we have evolving standards in that area, as written in law.
If the citizenry decided that capping child rapists is a good idea–which many do and possibly the majority–then we will go that way eventually. Kennedy notwitstanding.
Over on the Volokh Conspiracy–lawyers–there is a good discussion of the issue from legal and social points of view.
So, to answer a question in an earlier comment, the government is presumed to be obligated to do for us what we think it is obligated to do for us. If it doesn’t, we probably aren’t going to mutter, forget it, and lie back down.
And life sentences only protect society to the extent that the movement against life sentences fails, and the perps don’t assault anybody while in jail, and the perps don’t escape.
Andrew Vachss has some interesting fiction around this issue. Formulaic, but interesting.
I believe in natural law (so that my rights are not merely whatever this “evolving” state or society says they are). But I certainly do not think that our ancestors necessarily knew what was best. There is no connection between these two ideas. In fact, if there is no natural distinction between right and wrong, you cannot say that our ancestors were ever wrong. If all we do is change, then all we do is change. We don’t improve.
Great minds think alike. Hurray to the evolution of decency.
http://joe-perez.com/2008/06/the-supreme-court-america-has-grown-more-civilized-in-its-understanding-of-cruel-and-unusual-punishment/
And strangely enough, unlike pro-choice Catholic politicians and judges, none of the Catholic dissenters will be threatened with refusal of communion or excommunication.
What’s strange about it? The Catholic teaching on the death penalty is not part of the core teaching of the church; the abortion doctrine is. The death penalty is a question of public policy, abortion is a question of personal morality. The Pope has an opinion on the death penalty, but it is not binding on Catholics to agree with him.
New news from the Volokh Conspiracy. According to a survey, standards of decency are evolving. The public increasingly wants the death penalty for child rape.
So it was Kennedy’s idea, all by his little ol’ self.
Nothing to do with public ideas of decency.
Whatever the morality arguments, I can’t think that any law which gives child abusers an incentive to kill their victim is good policy.
I’m curious what circumstances made execution for child rape “good and prudent” in the past but no longer apply.
Robert,
The problem is that certain Catholics (like Scalia) think that capital punishment is absolutely neccessary for Christianity. In other words, he is calling into question the Pope’s faith.
Can you find any logical reason why a supposedly devout Catholic should be able to insult the Pope in this manner and NOT at least face some public confrontation about this from the church, if not outright excommunication?
Let me repeat again; this isn’t about a person finding capital punishment acceptable. It’s about a person NOT finding it acceptable to be opposed to capital punishment.
Ben.
He’s calling into question the Pope’s interpretation–or taste–not his faith. Different question entirely.
And people have insulted popes for centuries by having different ideas, if that’s an insult.
Scalia has said nothing of the sort; your assertion is a gross mischaracterization of Scalia’s views. He has noted a correlation between belief in an afterlife and an acceptance of capital punishment.
Nor does he believe it unacceptable to be opposed to capital punishment; he simply thinks that judges unable to accept that the democratic process has resulted in capital punishment cannot do their jobs properly.
And the Church does not excommunicate people for “insulting” the pope. You seem to have some totalitarian fantasy life going on there; better get it looked at before it metastasizes and you start spouting economic theories that were dubious at their inception and then spent a century having the stuffing beaten out of them.
Oops, too late.
Robert-
They are the Supreme Court Justices. Their job is to interpret the Constitution. Theoritically, they were choosen to do so because they have training and education in the law. The long and short of it is their opinnions ARE more important than yours or mine.
They are not, as one justice once said, final because they are infallible. They are infallible because they are final.
Sort of like the Pope speaking ex cathedra.
Surely. But their moral objections are not found in the Constitution itself. Saying “you cannot have the death penalty because the Constitution forbids it, and here is my rational articulation of why” is an entirely different matter than “you cannot have the death penalty because I find it morally problematic.” That was Scalia’s point.
The legal opinions of Justice Kennedy should have infinitely more weight than mine. His moral opinions should have no weight at all.
I think his moral opinions start coming in when he’s trying to decide what “cruel and unusual” means.
Why? His moral opinions are irrelevant. If he is administering the Constitution, then what is relevant is what the people who wrote the Constitution thought cruel and unusual means.
If there is a new understanding of cruel and unusual, then there is a legitimate, tested, and 100% functional way to put that information into the Constitution - amend it.
If the people who wrote the constitution wanted exactly their current standard of “cruel and unusual” set in place for all time - or at least to require an explicit amendment for any shift in interpretation of the words - surely they’d have used words less general than “cruel and unusual”? Words like “cruel and unusual” invite interpretation. “Cruel and unusual as Madison would have understood them” actually seems quite a weird way of interpreting the words, and if you want to convince me that the Founding Fathers meant any such weird thing, you’d better show me some very explicit statement in their writings for such a reading. I’m fairly sure that nowhere in the Federalist/anti-Federalist debates did anyone discuss binding future generations to the current understanding of “cruel and unusual,” unless they went through the lengthy and arduous process of passing an amendment.
Sure, they invite interpretation and they can be open to change, as society evolves. And you are correct; amendment is not the only way for society to express its evolving view.
Which is more representative of the evolution of society? The democratically elected legislature composed of tens of thousands of legislators, or nine people appointed for life by a unitary executive? I think the answer to that is obvious.
It is the court’s job to interpret the law. It is not their job to substitute their understanding of evolving morality for the legislature - which is both far better equipped (the wisdom of crowds) and far better in tune with the actual evolution of the society’s thought, as opposed to what people like Hugo (or like me) wish the evolution of thought was.
What is clear is that the bulk of Kennedy’s opinion amounts to policy arguments. I happen to think in this case that a number of those policy arguments are pretty good, enough for me to have taken a decisive stance that the death penalty in these cases is a bad idea. But being a bad idea as a policy is not grounds for thinking it’s unconstitutional. The five justices who were in the majority on this case regularly give policy arguments when supposedly interpreting the Constitution, and it’s basically an abandonment of their job. They’re complete failures as judges interpreting the law if they just set the law to be whatever they’d prefer it to be. This is so whether they’ve got good or bad views. It’s not the job of a judge to change laws they don’t like the way the legislative branch does, but that’s exactly what this opinion did.
I should note that even the people who I tend to agree with on the court do the same thing sometimes, Jeremy. It is a terrible temptation, and given that the Supremes are the court of last resort and have no body that can (realistically) check a bad/activist decision, it is frankly amazing that there aren’t more bad decisions.