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Opening Arguments

Guess I have no decency

Here we go again -- a 4-4 tie, so Kennedy gets to write the majority opinion:

The U.S. Supreme Court ruled 5-4 Wednesday that child rapists cannot be executed, concluding capital punishment is reserved for murderers.

The ruling stemmed from the case of Patrick Kennedy, who has been on Louisiana's death row since 2003, when he was sentenced to be executed for raping his 8-year-old stepdaughter.

Justice Anthony Kennedy wrote in the majority opinion that "evolving standards of decency" in the United States forbid capital punishment for any crime other than murder. Execution of Patrick Kennedy, the justices ruled, would be unconstitutional.

I'm not a big fan of finding rights in the Constitution that aren't there, based on the justices' interpretation of society's evolving needs. The Constitution should be our foundational bedrock, not a "living document." But I think Kennedy is on pretty firm ground here. Where the Constitution forbids something, such as cruel and unusual punishment, but doesn't define it, all we can do is define it ourselves using contemporary standards. The Constitution does recognize capital punishment, but all it says, really (in the Eighth Amendment), is that somebody can't be held on a capital charge (except in wartime) without a grand jury indictment. What deserves capital punishment isn't specified, so that has to be determined outside the text of the Constitution.

That doesn't mean I think Kennedy and the other four are right about "decency" forbidding the execution of child rapers. I kind of like Harl's solution, in a comment on another post:  Fund the construction of large Osterizers, and sentence the perps to 60 seconds on "frappe."


Harl Delos
Wed, 06/25/2008 - 11:31am

It's not a 4-4 tie, Leo. This was a 5-4 decision. The lower court's decision was overturned.

The full decision is at:

They say hard cases make bad law. The fact that the majority opinion runs 36 pages testifies that this one is a hard case. From the majority opinion, it's not clear that Patrick Kennedy is, in fact, the one who raped her. She accused him of the rape 21 months afterwards, and her accusation is not consistant with the physical evidence. Moreover, it is clear that he called 911 to get her medical help.

The Supreme Court, however, is barred from ruling on that; only a jury is allowed to decide matters of fact.

I'd like to see some DNA evidence, myself. The guy doesn't deserve life in prison if he didn't do it - nor does he deserve life in prison if he did. Unfortunately, the court doesn't get to demand DNA evidence.

This ruling is largely based on the Coker opinion. In that case, two justices argued that the death penalty is always unconstitutional. Another four held that the rape of an adult is not sufficient to justify the death penalty. And I'm not sure I disagree with that. But the rape of a child is different.

Hard cases make for bad law. This was a hard case, and it's bad law.

Wed, 06/25/2008 - 12:12pm

Does anyone know HOW each Justice voted?

Leo Morris
Wed, 06/25/2008 - 1:41pm

Harl: I thought I was being clear, but obviously not. I meant a 4-4 tie until Kennedy broke it, as he has so often. Margaret: The ususal suspects. Roberts, Alito, Scalia and Thomas for the death penalty; Stevens, Souter, Ginsburg and Breyer against, with Kennedy adding the fifth vote. This is Alito in dissent: He said it means the death penalty would be barred "no matter how young the child, no matter how many times the child is raped, no matter how many children the perpetrator rapes, no matter how sadistic the crime, no matter how much physical or psychological trauma is inflicted, and no matter how heinous the perpetrator's prior criminal record may be."