The Supremes Are Thinking It Over.

[JAMESBJOHNSON]

http://abcnews.go.com/TheLaw/SCOTUS/story?id=4087320&page=1

Are there crimes as bad as murder? Like torture? Or rape? How about the death penalty for execs who destroy investor owned companies...like ENRON?

 

[lesbiaphrodite]

Crimes against humanity. Any crime that takes away personal freedom.

 

[Weird Harold]

http://abcnews.go.com/TheLaw/SCOTUS/story?id=4087320&page=1

For those disinclined to follow go.com's ad and cookie laden links:

[/center]Court Mulls Death Penalty for Child Rape
By MARK SHERMAN – 21 hours ago

WASHINGTON (AP) — The Supreme Court agreed Friday to decide whether a state can execute someone convicted of raping a child, one of the few remaining crimes that does not require the death of the victim to result in capital punishment.

Patrick Kennedy, 43, was sentenced to death for the rape of his 8-year-old stepdaughter in Louisiana. He is one of two people in the United States, both in Louisiana, who have been condemned to death for a rape that was not also accompanied by a killing.

The Supreme Court banned executions for rape in 1977 in a case in which the victim was an adult woman.

Kennedy's lawyers say the death penalty for child rape violates the Eighth Amendment protection against cruel and unusual punishment.

The justices were scheduled to hear arguments in the case in April.

The last executions for rape or any other crime that did not include a victim's death were in 1964.

Forty-five states ban the death penalty for any kind of rape, and the other five states allow it for child rapists. Kennedy's case is the only time a state has sought to execute someone. Montana, Oklahoma, South Carolina and Texas allow executions in such cases.

The Louisiana Supreme Court upheld the sentence. "Our state legislature and this court have determined this category of aggravated rapist to be among those deserving of the death penalty, and short of first-degree murder, we can think of no other non-homicide crime more deserving," Justice Jeffrey Victory wrote.

Chief Justice Pascal Calogero dissented, saying that with the possible exception of espionage or treason, "the Eighth Amendment precludes capital punishment for any offense that does not involve the death of the victim."
...
More at http://ap.google.com/article/ALeqM5iiEniqpAKUX1RKGGD9edZH_WHkYwD8TVCEJO0 (which should be a text only version)[/center]

I believe I agree with Chief Justice Pascal Calogero's dissent. Not because the asshole doesn't deserve to die, but because the punishment is "unusual" due to the disparity of jurisdictions that allow or disllow it and the precedent of a supreme court banning the death penalty for rape of an adult.

 

[Boxlicker101]

Personally, I believe that torture or rape of a young child, especially by somebody who is supposed to be a protector of that child, is worse than some murders. The best thing to do would be to let everybody know that the guilty party was to be released in a very public place at a certain time, and that the public was free to do what they wanted to that person. And then do it.

I realize that will never happen, but it would be fitting. As for the constitutionality, as long as the courts are consistent, it should be alright. I'm not sure, but I believe rape was a capital crime when the BOR was written.

 

[Weird Harold]

I'm not sure, but I believe rape was a capital crime when the BOR was written.

It was, but "Rape" then and "Rape" now are essentially two entirely different crimes.

We also have to consider that hanging (the normal method at the time) was NOT considered either cruel or unusual, let alone both as the BOR requires.

I personally disagree with the states that don't have violent rape or rape of a child as a capital crime, but the number of States that don't make the death penalty in those that do an "unusual" punishment.

 

[Boxlicker101]

It was, but "Rape" then and "Rape" now are essentially two entirely different crimes.

We also have to consider that hanging (the normal method at the time) was NOT considered either cruel or unusual, let alone both as the BOR requires.

I personally disagree with the states that don't have violent rape or rape of a child as a capital crime, but the number of States that don't make the death penalty in those that do an "unusual" punishment.

I wouldn't call them "entirely different" although there has been an expansion of the definition. For one thing, the woman can claim she was drunk, and get the guy convicted, even though she was in control of herself right up until the fucking happened. I deliberately made that sentence gender specific, by the way. If a guy claimed he wouldn't have had sex with a specific woman if he hadn't been drunk, he would probably become strictly an object of derision. In the case of a young victim, feeding alcohol to him or her to make it easier would, if anything, make the crime worse.

There is also the idea of a woman changing her mind, but we are refering to the rape of a very young boy or girl. Somebody under the age of 12 would not be able to give the initial consent. In another thread, somebody referred to a woman who was only 16, but looked and acted much older. That wouldn't fly here, because nobody, especially a stepfather, could make a claim that he didn't know the victim was very young. I believe there could be mitigating circumstances, and there could also be aggravating circumstances, such as being the father or stepfather of the victim.

I know that public hanging was the method used in the 18th century. Personally, I think we should go back to that. It certainly is more of a deterrant than the present method. As far as I'm concerned, "cruel and unusual punishment" meant something like burning at the stake or drawing and quartering or hanging in irons. It did not mean something quick and neat, such as hanging or electrocution or lethal injection, even though there might be some discomfort.

 

[Oblimo]

Here's the important bit:

The Supreme Court banned executions for rape in 1977 in a case in which the victim was an adult woman.

It's not a question of whether the death penalty is constitutional punishment for rape; the Supreme Court has already ruled that it's not.

This is a case about how the US perceives children.

 

[emap]

Hanging can be painless to the hangee, and it can be incredibly painful, or their head pops clean off. Which is why hanging does not happen anymore, watching a person convicted of a crime be led up to the gallows get set then falls to a loud snap and a big gush of blood will turn most people's stomach.

Honestly, I think they should simply not have segregated sections of the prison, put the child abusers in with the general population, see how many of those actually live long enough to be released.

 

[Boxlicker101]

Here's the important bit:



It's not a question of whether the death penalty is constitutional punishment for rape; the Supreme Court has already ruled that it's not.

This is a case about how the US perceives children.

I believe the case that was decided was rape of an adult. Rape of a child could be a different matter, and the law even makes a distinction as to the age of the victim.

If hanging was intended to be considered to be "cruel and unusual punishment" that would have been spelled out when the BOR was passed. It can be messy, but it is not usually cruel, unless the person doing the hanging wants it to be. I don't know of that ever happening when the hanging was done legally.

 

[ms.read]

Honestly, I think they should simply not have segregated sections of the prison, put the child abusers in with the general population, see how many of those actually live long enough to be released.

yeah, in the big house now, its like being put into a club.

"Hey, you molested a nine y.o? Me too. Wanna share memories?" said the hypothetical convicted child rapist

 

[BlackShanglan]

The Supremes Are Thinking It Over.

The Temptations have already rendered their 4-1 majority decision against, with Otis Williams filing a passionate 27-page minority dissent.

 

[Weird Harold]

I wouldn't call them "entirely different" although there has been an expansion of the definition.

18th Century concepts of Rape and/or sexual assault was much more than aless expansive definition -- a very simplified summary would be something on the order of "If she wasn't accompanied by a husband/male relative or in her own home, she was askin' for it."

IIRC, it was deemed impossible for a white man to rape an indian, black, or indentured woman even if she was accompanied by a husband/male relative or in her own home.

Even if rape was determined, it wasn't a capital crime unless blood was spilled or bones were broken.

I don't think people really realize just how few legal rights women and minorities had in the 18th century, even in the "enlightened" new country of the United States.

 

[Weird Harold]

If hanging was intended to be considered to be "cruel and unusual punishment" that would have been spelled out when the BOR was passed. It can be messy, but it is not usually cruel, unless the person doing the hanging wants it to be.

Hanging -- or execution by any means -- IS cruel, and alway has been, which why the BOR is worded Cruel AND Unusual instead of Cruel OR Unusual.

The dissent in the article I quoted was based on the death penalty being "unusual" in addition to the inherent Cruelness of execution; only one tenth of States have the death penalty for rape of a minor and only one(?) state has ever levied the penalty for that crime -- pretty much a clear definition of "Unusual" in my mind.

 

[Pure]

since i would consider a death penalty only in the most exigent circumstances (where enemy troops are pouring in, and the miscreant is supplying them road maps with important targets circled), i wouldn't favor it in this case.

BUT even if i favored the death penalty for the worst cases, e.g. hired killers, i don't think that offenders who spare the life of the victim are or should be treated as, among the worst.

PLEASE note, emap, ms read, box, since you apparently favor the death penalty here, but don't come out and say it, that such a law** would sometimes, at least, have to effect of giving the child rapist an incentive to kill the child (since the penalty is no worse, and there's no witness).

--
** or the lynching practices you appear to recommend explicitly

 

[BlackShanglan]

PLEASE note, emap, ms read, box, since you apparently favor the death penalty here, but don't come out and say it, that such a law would sometimes, at least, have to effect of giving the child rapist an incentive to kill the child (since the penalty is no worse, and there's no witness).

*nods* You hate to have to weigh justice vs. practicality, but I don't think it's wise to ignore that fact. Mind you, it won't weigh in everyone's mind; the world is full of idiots who think that they can get away with murder, and plenty will kill someone to prevent him/her from testifying when much lighter sentences hang in the balance. If you're not going to get caught, then it doesn't matter what the sentence would be if you were.

Personally, I'd like to see stronger sentencing for first-time offenses and for sexual offenses deemed more minor or pled down. It's appalling how often one looks into a rape case (with or without a death involved) only to find a series of previous assaults with only brief amounts of time served before the perpetrator was released to find his next victim.

 

[Weird Harold]

PLEASE note, emap, ms read, box, since you apparently favor the death penalty here, but don't come out and say it, that such a law** would sometimes, at least, have to effect of giving the child rapist an incentive to kill the child (since the penalty is no worse, and there's no witness).

*nods* You hate to have to weigh justice vs. practicality, but I don't think it's wise to ignore that fact. Mind you, it won't weigh in everyone's mind; the world is full of idiots who think that they can get away with murder, and plenty will kill someone to prevent him/her from testifying when much lighter sentences hang in the balance. If you're not going to get caught, then it doesn't matter what the sentence would be if you were.

I don't think the "I can't be excuted twice so I might as well kill them" argument is seriously weak -- it essentially rests on the assumption that a criminal committing a captial crime is going to think rationally; which is, to my mind, is an assumption that is pretty much automatically refuted by thefct that they're committing a capital crime in the first place.

Personally, I'd like to see stronger sentencing for first-time offenses and for sexual offenses deemed more minor or pled down. It's appalling how often one looks into a rape case (with or without a death involved) only to find a series of previous assaults with only brief amounts of time served before the perpetrator was released to find his next victim.

I'd like to see real "Truth In Sentencing" and serious limits placed on Plea Bargaining for all violent crimes. The repeat offender rates aren't outrageous for sex crimes, they're outrageous for all crimes -- plea bargains and parole should be absolutely prohibited for repeat offenses.

 

[BlackShanglan]

I don't think the "I can't be excuted twice so I might as well kill them" argument is seriously weak -- it essentially rests on the assumption that a criminal committing a captial crime is going to think rationally; which is, to my mind, is an assumption that is pretty much automatically refuted by thefct that they're committing a capital crime in the first place.

*nods* As my mother used to say, there's no entrance exam for a career of crime. One of my most regular thoughts, when watching "crime TV" or reading reports, is, "Did you really have to kill some poor innocent person to prove that you're a jackass? If you were going to be this much of an idiot, couldn't you have just gone straight to prison and asked them to lock you up instead of bothering with all of the violent cruelty first?"

 

[emap]

Pure actually I do not like a death sentence, it is required for some people, though most killers are simply guilty of being to emotional and killing their cheating wife, abusive husband or what have you.

A serial killer on the other hand cannot be trusted to ever be out of prison, they live to kill. Same thing with serial rapists, and to a lesser degree burglars. Of course burglars don't need a death sentence, they just need to figure out they can get a job that pays enough to live on. Which is why they burgle and sell drugs, usually not the same person.

My views on a fitting punishment for rapists I have outlined before so no point in mentioning it again. However, a pedophile or child rapist lead to two different problems. First, physically the child is not ready for sexual activity so most likely suffers from permanent physical damage, not to mention the mental damage. Young enough they can recover and live a normal life assuming the physical damage is not to sever. However, if a child is not young enough to simply get over it, they will suffer through numerous mental problems there entire life. In the more extreme cases that means they can never hold a job, or get married because of one rape.

Think about it this way, an adult who is raped can shut down for years before they recover enough to lead a semi normal life. Adults are a little better prepared for the nasty things in life than a child.

As for letting them just be in the general population, it may lead to their death, it may lead to being savagely raped multiple times and it may lead to nothing. The fear on the other hand is exactly what they have visited onto their victim. I see no reason why a criminal should not receive the same thing that they have done to someone else.

I'd really like to see an end to criminal rights and a return to something closer to eye for an eye tooth for a tooth. Because that is the only current thing that will slow or end the more violent crimes. Perhaps in time a correlation between hormone or some other thing in the human brain leading to violence can be found and corrected through surgery or pills. Though until then, the only way to end violence is to return it.

Remember the big stick comment? It's not just for countries.

 

[JAMESBJOHNSON]

EMAP

I participated in 100s of trials when I worked for the government. A few aspects of our criminal justice system impressed me as generally being 'true.' Cops are not horribly bright or diligent in their work. Lawyers are only interested in winning. And judges are abysmally ignorant of the law. BUT NOT ALL OF THEM. I want this understood. Some of these folks are sharp as razors and commited to fair & impartial justice. AND MOST ARENT. Plus the brightest people rarely serve on juries. The system prefers dummies.

When we correct these problems justice will be done.

 

[Pure]

emapI'd really like to see an end to criminal rights and a return to something closer to eye for an eye tooth for a tooth.

pure: i'd respectfully disagree. in fact the ancient Hebrews/Jews in the book of deuteronomy had clearly moved beyong 'eye for eye', e.g. in having fines for certain offenses (which is somewhat like the idea floated by jbj.) in fact, irrc, they were more advanced in that the criminal concept was not invoked for minor property offenses.

IOW, if you steal, in those times, it's more like what we'd call a 'tort' [civil wrong]; it's actionable. the victim deserves compensation and/or the stealer pays damages.

 

[BlackShanglan]

Ah, you humans. That's the truth of any complex system, I find. If we could just get all of the damned defective humans out of it, it would work beautifully.

 

[Boxlicker101]

Hanging -- or execution by any means -- IS cruel, and alway has been, which why the BOR is worded Cruel AND Unusual instead of Cruel OR Unusual.

The dissent in the article I quoted was based on the death penalty being "unusual" in addition to the inherent Cruelness of execution; only one tenth of States have the death penalty for rape of a minor and only one(?) state has ever levied the penalty for that crime -- pretty much a clear definition of "Unusual" in my mind.

I believe many more states had the death penalty for rape. California sent a man, Caryl Chessman to the gas chamber in 1961 for that crime. I think that was the last one, although I don't know for sure, but I am sure other states have done so also. The death penalty has never been considered cruel and unusual punishment, although some shysters claim it is, in their attempts to keep their scummy clients alive, thereby thwarting the will of the vast majority. A few judges are opposed to it also, but the voters kick them out of office at every opportunity.

 

[emap]

Yes well paying someone back for stealing from them is all well and good, until you realize anymore, someone steals from others because they have no other income. At which point making them pay you back becomes a moot point. Hence the prison term. Of course we are not talking about burglars and not violent criminal offenders. For the most part they deserve time in prison, or paying back through monetary fines or public service. Which happens, probably not as often as it should though it does happen.

Before anybody says child abuse is not violent, to the child it is violent because it not only robs them of their innonence, it in many ways ruins their life. I don't condone the abusers and rapists die, I think they should simply end up living in constant fear like their victim.

Not to say a statutory rapist should get the same treatment, she or he wanted to have sex with the offender, mom and dad for whichever was the youngster objected or they were caught. Not really a loser on the victim side in those cases, assuming all they are being charged with is statutory rape.

I do have to disagree with you on the jewish being past eye for an eye, they were not, they simply did not cut off a theif's hand, they made you return and pay a penalty, you killed someone you died. The penalties fit the crime, they mostly don't do that anymore because the criminal has all sorts of rights and the victims get a day in court and that about covers it.

I'm not saying a convicted murderer should go to the lethal injection room that day, they should have a few tries at proving they did not do it since as James said, the court system barely works. But seriously, the reason there were not that many criminals 2-300 or more years ago is simply because you killed someone you died, stealing a horse got you killed too but well they were a tad more prized then. Drunks spent the night in jail and went home the next day, theives spent time in prison, and so forth.

 

[Weird Harold]

... But seriously, the reason there were not that many criminals 2-300 or more years ago is simply because you killed someone you died,...

The reason there were fewer criminals in the past was simply that there were fewer crimes.

There were a lower percentage of repeat offenders because the penalties were harsh and often lethal even if not technically a "death sentence" but harsh penalties don't stop people who don't think they'll be caught and punished.

One of the problems with the legal system in most "first world" countries is that there are so many laws on the books that virtually anyone can be accused and convicted of somthing that they didn't even know was illegal. Every politician wants to cure problems by passing a new law, but damned few ever realize that repealing some of the ineffective or just plain stupid laws would do far more to "make things better." ( if nothing else, by forcing a few lawyers to find a real job.)

 

[keeblercrumb]

The reason there were fewer criminals in the past was simply that there were fewer crimes.

There were a lower percentage of repeat offenders because the penalties were harsh and often lethal even if not technically a "death sentence" but harsh penalties don't stop people who don't think they'll be caught and punished.

One of the problems with the legal system in most "first world" countries is that there are so many laws on the books that virtually anyone can be accused and convicted of something that they didn't even know was illegal. Every politician wants to cure problems by passing a new law, but damned few ever realize that repealing some of the ineffective or just plain stupid laws would do far more to "make things better." ( if nothing else, by forcing a few lawyers to find a real job.)

Spot on! I have always thought it should be mandatory to identify some law to get rid of before you can pass a new one...... Unfortunately, this might just slow the whole legislative process down even more, if that is possible.

This whole "law" thing is getting sillier and sillier with each passing politician....

On a more related subject... I am totally against the death penalty..... Lots of pragmatic reasons.... but the most important one being that it legitimizes the taking of human life.... Maybe when countries without a death penalty start having higher murder rates than those that do..... I will re-examine my belief. Of course.. .this parallels the incarceration rate.... and I think we do too much of that too......

I distrust "revenge" as a motive or basis for punishment... It seems to me that it hardly ever works.... Now the likelihood of being "caught"…. THAT is a deterrent, never mind the punishment.

Oh... and Happy New Year....

-KC