Kennedy v. Louisiana (2008)

Kennedy v. Louisiana (2008)

My respect for Justice Kennedy--which has never been real high--continues to decline. Regular readers will know that I am a mild opponent of the death penalty. It lacks an Undo button, and that's a very serious deficiency. Advocates of social justice (at least in the Soviet, Chinese, and National Socialist sections) have a long history of indiscriminately using the death penalty against their political opponents.

Still, the death penalty is clearly Constitutional. The Constitution explicitly makes provision for it. That the Constitution provides for it--and at the same time, prohibits "cruel and unusual punishment," shows that the Framers didn't have a problem with the death penalty.

There was a bit of a movement away from the death penalty at the time, because of the influence of Cesare Beccaria and his book On Crimes and Punishments (1764). (Here's a 1775 translation into English erroneously attributed to Voltaire.) English law had something like 168 capital crimes when we declared independence. The list of crimes that were capital in Pennsylvania (one of the more liberal colonies because of the Quaker influence) before the Revolution is quite extraordinary, including burglary, rape, sodomy, bestiality, malicious maiming, and arson. This wasn't just theoretically the punishment. I've read many newspaper accounts of Pennsylvania hanging people for burglary before the Revolution. After the Revolution, Pennsylvania reduced the number of capital crimes substantially: some sources say to four crimes, others indicate to two (treason and murder), this book claims only murder was capital after 1794. Delaware had fourteen capital crimes.

Still, capital punishment was accepted as a necessary part of the criminal justice system. It enjoys widespread support in America today--and from what I have read, it enjoys widespread support in Europe as well. (The European elites are even less tolerant of majority will than our elites.) And it is abundantly clear that not just treason and murder were legitimate reasons for capital punishment--so was rape.

In Furman v. Georgia (1972), the Supreme Court decided that capital punishment was excessive punishment for rape of an adult victim. I've known a lot of rape victims (being from California); as much as capital punishment runs a cold chill down my spine, to call it "excessive punishment" just shows how liberal the Court was in 1972, completely and utterly unconcerned about the trauma that rape inflicts.

Because Furman was quite explicit that rape of an adult could not be punished with death, a few states passed laws that made rape of a child a capital crime. Louisiana made rape of a child under twelve years of age into a capital crime. In this particular case, the accused was convicted of brutally raping his eight year old stepdaughter. How brutal? He called up a cleaning service to help clean up the blood splattered everywhere. The language that he used when requesting their help, even if it were not evidence that he was the rapist, suggests that insensitivity at a level that I find incomprehensible.

Professor Kerr over at Volokh Conspiracy has a pretty good discussion of what's wrong with the majority opinion. There is a pragmatic argument that one could make for why child rape shouldn't be a capital crime: that it creates an incentive for the rapist to murder the victim. I've mentioned my concern about capital punishment in general. But the reasoning that Justice Kennedy uses to justify why the death penalty is unconstitutional for the rape of a child is utterly specious.

UPDATE: A commenter over here points out the inconsistency between: "The death penalty doesn't deter criminals because they don't think that far ahead" and "If we make it a capital offense, criminals will decide to murder their victims to eliminate a witness." Which is it? Are child rapists so present oriented that they can't be deterred by the prospect of death, or will they kill their victim because they can reason far enough ahead to see the risk of leaving a witness? You can't have it both ways.

UPDATE 2: It struck me that yet another reason why liberals may want to keep the death penalty off the table for child rape is the danger that too much of the elite of American society might be at risk. For example, Charles Rust-Tierney, past president of the ACLU of Virginia, who pled guilty to purchasing videos of little girls being raped last year. Or CBS producer Daniel Barron, arrested last year after attempting to swap football game tickets for the use of a man's 11 year old daughter. "I will be very gentle with her," he promised.

One of the events that ended up putting the Taliban in charge of Afghanistan many years ago was that two warlords, in the civil war after the Soviets withdrew, got into a rather public fight about two twin boys who had been taken captive. What were they fighting about? Who got the right to rape them. The Taliban--and especially Mullah Omar--ended up in power because this level of immorality was unacceptable to the population. Boy, did the Afghanis regret that, a few years later!

One of the factors that helped to put the Nazis in power was that much of the German population was repulsed by the degraded morality that had become widespread in places like Berlin in the Weimar Republic. Of course, behind the facade of decency, the Nazis were pretty morally depraved. Ernst Roehm, the head of the Sturmabteilung, and most of the top leadership, were homosexual. Goering collected obscene art (including some really bizarre furniture). Genocide also isn't quite what traditionalist Germans expected when they voted National Socialist.

In the 1920s, the KKK rode to enormous influence in many parts of the U.S. by focusing on traditional morality, as distinguished from the increasingly "sophisticated" sorts in big cities. A fair number of Americans bought into the KKK's program at least partly in reaction to what was going on in places like Chicago and New York City. As it turned out, the leadership of the 1920s KKK was personally immoral. The secretary of one of them committed suicide after her boss raped and mutilated her. When this became public knowledge, it severely impaired the moral authority of the movement, and played a major part in demolishing the Klan.

Much of the elite of this country is utterly contemptuous of traditional morality, not just with respect to sexuality, but concerning personal honesty, financial improprieties, etc. Traditional Christianity in America doesn't have any charismatic leaders that could successfully rise against the depravity that is now in charge. That's both unfortunate and fortunate. The unfortunate part is that we aren't likely to stop what is going on anytime soon. The fortunate part is that the charismatic leaders tend to be like the examples above, who lead the masses to action, but are personally immoral monsters.

The Death Penalty: Honest Arguments Needed

The Death Penalty: Honest Arguments Needed

I oppose the death penalty for a variety of reasons: the lack of an Undo button being perhaps the most serious, but at the core of my opposition to it is that it makes the hair on the back of my neck stand up to think of the government intentionally taking people out and killing them when it has other choices. The 1984 movie version of 1984 has one of those profoundly disturbing scenes where during the Two Minute Hate, prisoners of war are being publicly executed in front of the cheering mob. That we do it more dispassionately and without the blood lust doesn't help me much. (I must confess that there are some monsters that make me waver a bit--there's a guy in California who is probably still on Death Row for a rape/torture/murder of a 2 year old little girl committed back in the 1980s for whom I might be prepared to make an exception.)

However, just because I don't approve of the death penalty, doesn't mean that I particularly approve of death penalty opponents. I find the arguments advanced by death penalty opponents astonishingly dishonest. The argument that the death penalty is intrinsically cruel and unusual punishment? Nonsense. The death penalty was common in America when the states ratified the Bill of Rights.

The argument that electrocution or gas chamber inflict unnecessary suffering, thus violating the cruel and unusual punishment clause? Nonsense. Hanging was the common method of execution in 1791, and while many of those so executed died quick and relatively painless deaths when their necks broke, there are gobs of botched executions in that time with people who weren't heavy enough just struggling for long periods of time while they were strangled. That's part of why Michigan has never had a death penalty. One of those botched executions in Michigan just before statehood had a powerful impact on all those who had the misfortune to be there.

The argument advanced some years ago that the drugs used in lethal injection had not been approved for use on humans, and their safety wasn't known? That would almost be funny, if it was a Saturday Night Live. Not in a courtroom.

I've never been particularly sure of whether the death penalty deterred murder or not. John Lott's new book Freedomnomics points to a number of studies that show that it does. This column by him in the November 2, 2007 New York Post makes the point that many of the arguments against the death penalty are absurd:

A common claim is that executions - now down to about 60 per year - are too rare to deter criminals. To see the spuriousness of this complaint, consider that "only" about 55 police officers are killed each year - yet we (academics and the public alike) still see it as a dangerous job, one whose stresses help account for higher divorce and suicide rates.

Yet those killings are spread across about 700,000 U.S. police officers. By contrast, 2005 saw 60 executions and 16,700 murders - that is, we executed murderers at 45 times the rate at which criminals killed police officers. Given the impact on police, how can we believe that murderers would be unaffected by the much larger risk they face? Critics also point to mistaken convictions - yet they still can't point to a single case in which an innocent person was executed. This is ultimate proof that our justice system works well - making due account, for example, for the fact that witnesses sometimes make misidentifications.

Others, like the American Bar Association, claim racial biases in how the death penalty is applied. In fact, while African-Americans have committed 53 percent of all murders since 1980 in which the killer's race is known, they have accounted for only 38 percent of the executions.

Let's hear it for honest arguments against the death penalty--not dishonest ones.

UPDATE: A reader points out that it is cheaper to put a murderer in prison for life than to execute them. This is true. But why? It is so expensive to execute a murderer because the ACLU has made it so expensive. Even a careful painstaking review of the evidence, trial record, and the law shouldn't cost many millions of dollars each and every time. Imagine if conservatives controlled the federal courts, and required every individual release from prison to be this thoroughly checked. You could make the argument that, "It's cheaper to keep convicted burglars in prison for life, than to let them out."