Legislating from the Bench…again
Now, I’m not lawyer, obviously, but from my rudimentary understanding of the purpose of the court system and the law, social “trends” should NOT be used in making a judgement on whether or not something is Constitutional. Apparently, this basic notion that the courts are in place to interpret the law as it is written and make sure that it conforms to U.S. Constitution as it is written, is outdated. Observe the latest Supreme Court ruling:
“The death penalty is not a proportional punishment for the rape of a child,” Justice Anthony Kennedy wrote in his majority opinion. His four liberal colleagues joined him, while the four more conservative justices dissented.
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The court struggled over how to apply standards laid out in decisions barring executions for the mentally retarded and people younger than 18 when they committed murder. In those cases, the court cited trends in the states away from capital punishment.
In this case, proponents of the Louisiana law said the trend was toward the death penalty, a point mentioned by Justice Samuel Alito in his dissent.
“The harm that is caused to the victims and to society at large by the worst child rapists is grave,” Alito wrote. “It is the judgment of the Louisiana lawmakers and those in an increasing number of other states that these harms justify the death penalty.”
But Kennedy said the absence of any executions for rape and the small number of states that allow it demonstrate “there is a national consensus against capital punishment for the crime of child rape.”
How is there a national consensus when the judges were split 5-4 along ideological lines and five states currently allow executions for child rapists? And if there was a consensus, why did the Supreme Court need to step in? The courts should never rule based on social trends. One day those social trends might reverse themselves. Instead, the courts should focus on the laws as written. The ruling uses the vague language of the eigth amendment outlawing cruel and unusual punishment to justify banning the death penalty. Recognizing that “cruel and unusual” is a social definition that changes with the times, some punishments that were once permissible could be concievably banned now. However, this should be applied very sparingly. The idea that certain forms of death falls under this category is not something I would disagree with. However, whether or not to impose the death penalty is a Right of the States. Going down this road, will the Supreme Court one day rule that a life sentence is cruel and unusual as well? What about for a murderer? Can’t you just see the social apologists convincing the courts and many of the population that the murderer should be “reformed” and released after 20 years or so? Why not 5 years? There is a reason we allow each state to set their own standards of punishment, deciding for themselves what is a “proportional” sentence for a particular crime. What is the point in having the legislature make these decisions if the Supreme Court is going to overturn them because the “trend” is for a lesser sentence?
Our Constitution was set up with a system of checks and balances in order to prevent one branch of government from controlling the other two. There are five justices on the Supreme Court who seem to have forgotten that they aren’t the ones making the laws…
Hat tip to Ace of Spades, who has PDFs of this ruling and the ruling concerning punitive damages due to an oil spill.
Also, one of the commenters there, Scottie, notes:
I browsed through the SCOTUS death penalty/rape opinion, and it appears as if they somewhat glossed over the facts of the particular case at issue. I also quickly browsed the Supreme Court of Louisiana’s opinion (Lousiana v. Kennedy, 957 So.2d 757 (La. 2007), and they point out some of the indisputable medical evidence presented in the case including:
-”The victim’s predominate injury was vaginal with profuse bleeding. Her entire perineum was torn and her rectum protruded into her vagina. Dr. Scott Benton of Children’s Hospital testified as an expert in pediatric forensic medicine that the victim’s injuries were the most serious he had seen, within his four years of practice, that resulted from a sexual assault. A pediatric surgeon was called in to repair the damage, which was repaired successfully.FN4
FN4. However, as a result of pain, the victim had to be fed gallons of stool softener through a tube to permit her to begin defecating again.
I go back and forth on my own personal opinion of the death penalty, but to me, if we’re going to execute criminals, this guy should be first in line. Child rapists, to me, or worse than most murderers in this country. I vote for death by impaling onto a stake…slowly.
