U.S. Supreme Court to hear Capital Punishment Case
Before I get to today’s topic, Gov. Mitt Romney won the Wyoming Caucuses yesterday gaining 8 of the 12 delegates up for grabs. By my count, Gov. Romney now LEADS the Republican field with 20 delegates to Gov. Huckabee’s 17 and Sen. Thompson’s 6 after the only two primaries or caucuses held. I’m leading with this story; the Boston Globe, because I suspect it benefits Gov. Romney, buried it on page A13 with a 5 – 10 sentence story.
Also, going to a CNN.com election site, the site claims more delegates have been awarded than I can see awarded for Iowa and Wyoming. Even though I cannot determine the source of these delegates, CNN reports even more delegates belong to Gov. Romney than Gov. Huckabee. CNN puts the running delegate total at 26 for Gov. Romney and 20 for Gov. Huckabee of the total 59 delegates awarded.
Only in a world dominated by a liberal media is the conservative leading 44% to 34% deemed to be trailing.
On Friday, January 4, 2008, the United States Supreme Court announced that it will hear the appeal of child rapist Mr. Patrick Kennedy, who lost his appeal before the Louisiana Supreme Court, to have his death sentence ruled unconstitutional.
First, there have been billions of words written about the death penalty in America and I’m writing this post without reading any of it. There simply is no need; I’m not planning to attend a dinner party on Manhattan’s Upper East Side attended by liberal constitutional law professors and students after all. I simply prefer to read the U.S. Constitution.
Second, I do not traffic in the world of triple, quadruple or quintuple negatives; I think anyone who has ever read an U.S. Supreme Court decision knows what I mean. I think voters who elected people that appoint Federal judges, especially, United States Supreme Court justices, should be able to have judicial decisions explained to them in English. That’s what I’ll attempt to do.
The 5th Amendment to the U.S. Constitution says, “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”
It cannot be any clearer. The Founding Fathers most definitely believed in capital punishment; there can be no misunderstanding of the phrases bolded and italicized above.
So, having easily cleared the hurdle that the death penalty is Constitutional, we are now only left to determine what the capital offenses are. And, in 50 states in the Union, we have a mechanism for determining these offenses; the voters, the state legislatures and governors. State representatives and governors may or may not campaign on death penalty policy positions. And, voters in each individual state may or may not vote based on their personal belief about the death penalty or a politician’s policy position on same, but in the end, the state legislatures pass bills to the Governor that define capital crimes. Yes, folks, it is that simple. If you don’t like the law in your state, make the death penalty a campaign issue and elect people to effect the change.
In 1995, the People (the voters, the state representatives and the Governor) of Louisiana passed a law that said aggravated rape of a child under the age of 12 is a capital offense (the barbarians!; have the People no compassion for child rapists?!).
In 1998, the Constitutional law hero of the liberals, Mr. Patrick Kennedy, a Louisiana resident, brutally raped his 8 year-old stepdaughter. My (news)paper reported that immediately after the crime, the child was taken away in an ambulance “having suffered severe injury and heavy bleeding”. No kidding?!
When I wrote just a few days ago about the importance of Presidents of the United States appointing judges, this appeal to the U.S. Supreme Court is exactly what I’m writing about.
In 1977, in Georgia v. Coker, the activist U.S. Supreme Court knocked down the constitutionality of capital punishment in non-capital crimes writing that the death penalty “is an excessive penalty for a rapist.” This is simply not for the U.S. Supreme Court to decide. It was for the People of Georgia to decide. They did. Their Will was usurped by activist judges.
I believe Mr. Kennedy should be “drawn and quartered” for his crime. That is, each arm and leg is roped to the saddle of a horse and his torso is cut with a (dull) knife as the horses are pulling off to four quadrants until the body is torn is fourths, or however it comes apart. Well, this penalty surely would not ever have to survive an 8th Amendment challenge of “cruel and unusual punishment” because no State would ever legislate such a penalty. No politician would ever get elected or re-elected for championing such a penalty. The Will of the People would prevail. I’d accept my disappointment because the People decided and not some activist judges. My argument would be made by me or someone more eloquent and my argument would fail. The system would work.
But “excessive” for aggravated rape? Folks, not even close. “Excessive” does not even come close to the “cruel and unusual punishment” standard (“drawing and quartering” might) of the 8th Amendment. The Court has no jurisdiction to consider “excessiveness”; it is simply not in their Charter as prescribed by the U.S. Constitution.
The Roberts Court now has the opportunity to correct what I consider to be a gross example of “legislating from the bench”. The importance of the President’s power to appoint U.S. Supreme Court justices, subject to the confirmation of the U.S. Senate, cannot be ignored.
The U.S. Supreme Court will hear Kennedy v. Louisiana and is expected to issue a ruling mid-summer 2008. Mr. Kennedy will continue to cost the taxpayers and voters of Louisiana money until that time and beyond; he was scheduled to meet his justice, as decided by the People of Louisiana, in 2003.
I could go on but I’ve asked you to read enough; maybe I can express the rest of my thoughts as a reply to a Comment if anyone has one. And, please, no comments about my favoring “drawing and quartering” for the aggravated rape of an eight-year old child (recall, severe injury and heavy bleeding; I wonder if she cried out in pain at all); maybe it was hyperbole, maybe it was not, but what I think should or should not happen to a monster is not the point of this post.
Before I get to today’s topic, Gov. Mitt Romney won the Wyoming Caucuses yesterday gaining 8 of the 12 delegates up for grabs. By my count, Gov. Romney now LEADS the Republican field with 20 delegates to Gov. Huckabee’s 17 and Sen. Thompson’s 6 after the only two primaries or caucuses held. I’m leading with this story; the Boston Globe, because I suspect it benefits Gov. Romney, buried it on page A13 with a 5 – 10 sentence story.
Also, going to a CNN.com election site, the site claims more delegates have been awarded than I can see awarded for Iowa and Wyoming. Even though I cannot determine the source of these delegates, CNN reports even more delegates belong to Gov. Romney than Gov. Huckabee. CNN puts the running delegate total at 26 for Gov. Romney and 20 for Gov. Huckabee of the total 59 delegates awarded.
Only in a world dominated by a liberal media is the conservative leading 44% to 34% deemed to be trailing.
On Friday, January 4, 2008, the United States Supreme Court announced that it will hear the appeal of child rapist Mr. Patrick Kennedy, who lost his appeal before the Louisiana Supreme Court, to have his death sentence ruled unconstitutional.
First, there have been billions of words written about the death penalty in America and I’m writing this post without reading any of it. There simply is no need; I’m not planning to attend a dinner party on Manhattan’s Upper East Side attended by liberal constitutional law professors and students after all. I simply prefer to read the U.S. Constitution.
Second, I do not traffic in the world of triple, quadruple or quintuple negatives; I think anyone who has ever read an U.S. Supreme Court decision knows what I mean. I think voters who elected people that appoint Federal judges, especially, United States Supreme Court justices, should be able to have judicial decisions explained to them in English. That’s what I’ll attempt to do.
The 5th Amendment to the U.S. Constitution says, “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”
It cannot be any clearer. The Founding Fathers most definitely believed in capital punishment; there can be no misunderstanding of the phrases bolded and italicized above.
So, having easily cleared the hurdle that the death penalty is Constitutional, we are now only left to determine what the capital offenses are. And, in 50 states in the Union, we have a mechanism for determining these offenses; the voters, the state legislatures and governors. State representatives and governors may or may not campaign on death penalty policy positions. And, voters in each individual state may or may not vote based on their personal belief about the death penalty or a politician’s policy position on same, but in the end, the state legislatures pass bills to the Governor that define capital crimes. Yes, folks, it is that simple. If you don’t like the law in your state, make the death penalty a campaign issue and elect people to effect the change.
In 1995, the People (the voters, the state representatives and the Governor) of Louisiana passed a law that said aggravated rape of a child under the age of 12 is a capital offense (the barbarians!; have the People no compassion for child rapists?!).
In 1998, the Constitutional law hero of the liberals, Mr. Patrick Kennedy, a Louisiana resident, brutally raped his 8 year-old stepdaughter. My (news)paper reported that immediately after the crime, the child was taken away in an ambulance “having suffered severe injury and heavy bleeding”. No kidding?!
When I wrote just a few days ago about the importance of Presidents of the United States appointing judges, this appeal to the U.S. Supreme Court is exactly what I’m writing about.
In 1977, in Georgia v. Coker, the activist U.S. Supreme Court knocked down the constitutionality of capital punishment in non-capital crimes writing that the death penalty “is an excessive penalty for a rapist.” This is simply not for the U.S. Supreme Court to decide. It was for the People of Georgia to decide. They did. Their Will was usurped by activist judges.
I believe Mr. Kennedy should be “drawn and quartered” for his crime. That is, each arm and leg is roped to the saddle of a horse and his torso is cut with a (dull) knife as the horses are pulling off to four quadrants until the body is torn is fourths, or however it comes apart. Well, this penalty surely would not ever have to survive an 8th Amendment challenge of “cruel and unusual punishment” because no State would ever legislate such a penalty. No politician would ever get elected or re-elected for championing such a penalty. The Will of the People would prevail. I’d accept my disappointment because the People decided and not some activist judges. My argument would be made by me or someone more eloquent and my argument would fail. The system would work.
But “excessive” for aggravated rape? Folks, not even close. “Excessive” does not even come close to the “cruel and unusual punishment” standard (“drawing and quartering” might) of the 8th Amendment. The Court has no jurisdiction to consider “excessiveness”; it is simply not in their Charter as prescribed by the U.S. Constitution.
The Roberts Court now has the opportunity to correct what I consider to be a gross example of “legislating from the bench”. The importance of the President’s power to appoint U.S. Supreme Court justices, subject to the confirmation of the U.S. Senate, cannot be ignored.
The U.S. Supreme Court will hear Kennedy v. Louisiana and is expected to issue a ruling mid-summer 2008. Mr. Kennedy will continue to cost the taxpayers and voters of Louisiana money until that time and beyond; he was scheduled to meet his justice, as decided by the People of Louisiana, in 2003.
I could go on but I’ve asked you to read enough; maybe I can express the rest of my thoughts as a reply to a Comment if anyone has one. And, please, no comments about my favoring “drawing and quartering” for the aggravated rape of an eight-year old child (recall, severe injury and heavy bleeding; I wonder if she cried out in pain at all); maybe it was hyperbole, maybe it was not, but what I think should or should not happen to a monster is not the point of this post.
posted by Zack at 9:31 AM
3 Comments:
ZR,
While I agree that the explicit language of the 5th Amendment provides a strong argument that the SCt cannot outlaw capital punishment altogether by declaring it as "cruel and unusual punishment" and therefore contrary to the 8th Amendment (as many anti-capital punishment advocates no doubt would like to argue), I don't agree that it decides the question of whether imposing capital punishment for a particular crime violates the 8th Amendment.
Suppose that in the 60's, the hippies had somehow managed to elect their cohorts to a majority of the California legislature, and to elect one of their own to the governorship, rather than Reagan. Further suppose that while these esteemed elected officials were got high together in the state capital, they made some crazy law -- like it is a capital crime to flush someone else's pot stash down the toilet. A mother then gets prosecuted and sentenced to death for flushing her 12-year old daughter's stash, and is sitting on death row when her appeal reaches the Supreme Court.
Are you telling me that the Supreme Court could not rule that the California law is unconstitutional and contrary to the 8th Amendment's prohibition against cruel and unusual punishment?
An extreme example no doubt, but like your drawn and quartering example, nevertheless points out that whether captial punishment for a particular crime is so extreme that it amounts to "cruel and unusual punishment" under the circumstances is a valid question. You may think that in the circumstances of the Kennedy case, it is not even a remotely close question, and you may be right, but it is still a question that is not answered simply by looking at the text of the 5th Amendment.
Conscience,
In your example, how would a challenge on "excessiveness" proceed through the Courts? When does the California Court get a chance to provide a check and balance on its own legislators? I think in your example there is no State Court that would let the penalty you describe stand. If such a Court did, I'm not sure I see how the USSC finds refuge in the 8th to overturn. Again, conceding the penalty is, in my opinon, excessive.
The Roberts Court is going to hear Kennedy because they are going to say (someone on the Court wants to say) with a very loud voice that the death sentence is absolutely not "excessive" for aggravated (is there unaggravated?) rape of a child.
Nice to have you back.
"How would a challenge on 'excessiveness' proceed through the Courts? When does the California Court get a chance to provide a check and balance on its own legislators?":
While I don't know California law specifically, presumably the California courts would only have the authority to overturn the state law in my example, and hence the mother's conviction, if the law was found to violate either the CA state constitution or the US constitution (just as a federal court can only overturn a law passed by Congress if it violates the US Constitution). At trial and on appeal, the mother would argue that the law making disposal of someone's pot stash a capital crime is unconstitutional. The Supreme Court would have authority to hear an appeal from the CA supreme court on any federal constitutional argument that the mother made. So, the mother would presumably be before the S Ct arguing that the CA law violates the US Constitution because the punishment is so disproportionate in light the crime that it represents "cruel and unusual punishment" prohibited by the Eighth Amendment. Again, while I don't know the specifics, I suspect that that is how the Kennedy case got to the Supreme Court, and that that was also the way that prior Coker case you mentioned got before the Supreme Court. Again, my example is a bit silly, but the notion is that the Eighth Amendment imposes some level of proportionality between the crime and the punishment. You may say that the punishment actually fits the crime in Kennedy (or is too lenient), and that it doesn't come close to being so disproportionate that it is "cruel and unusual," but that is what I suspect the argument will be about.
To use another example, if a state legislature made speeding a capital crime (I can't image even California adopting such a law, but presume that someone a state legislature did), the mechanism by which that law would get challenged and overturned would be an appeal of someone convicted and punished under that law arguing that it is unconstitutional on some grounds -- and the constitutional provision(s) they would point to would include at least the 8th Amendment.
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