Sapientia et Doctrina

LATEST UPDATES (7/03/08): It appears that The Supreme Court may have a made a mistake by making capital punishment for rapists unconstitutional. It admits to the error, on the basis that it  overlooked the fact that Congress has added child rape to the military death penalty in 2006. Details here, here, and here.

On 25th of June 2008, In a 5-4 vote, the Supreme Court struck down the Louisiana law that allowed the execution of rapists convicted of raping a child. This is indeed the sad news of the day. It is an example of how few liberal Justices have taken the business of creating laws into their own hands. What should be decided by the Legislative branch is now being decided by the Judicial Branch. In the past, Justice Scalia has voiced his opposition to this law-making practice of the Supreme Court :

The Court must be living in another world. Day by day, case by case, it is busy designing a Constitution for a country I do not recognize. (BOARD OF COUNTY COMMISSIONERS, WABAUNSEE COUNTY, KANSAS v. UMBEHR, 1996)

This Court seems incapable of admitting that some matters—any matters—are none of its business. (SOSA v. ALVAREZ-MACHAIN ET AL., 2004)

In KENNEDY v. LOUISIANA, June 25, 2008,   Justice Kennedy delivered the opinion of the Court, in which four of his liberal colleagues, Justice Souter, Justice Stevens, Justice Ginsburg, and Justice Breyer joined, making execution of convicted rapists unconstitutional.

Justice Alito, filed a dissenting opinion, in which Justice Roberts,  Justice Scalia and Justice Thomas, joined.

Justice Alito wrote:

The Court is willing to block the potential emergence of a national consensus in favor of permitting the death penalty for child rape because, in the end, what matters is the Court’s “own judgment” regarding “the acceptability of the death penalty.” Ante, at 24. Although the Court has much to say on this issue, most of the Court’s discussion is not pertinent to the Eighth Amendment question at hand. And once all of the Court’s irrelevant arguments are put aside, it is apparent that the Court has provided no coherent explanation for today’s decision.
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The Court’s final–and, it appears, principal–justification for its holding is that murder, the only crime for which defendants have been executed since this Court’s 1976 death penalty decisions, is unique in its moral depravity and in the severity of the injury that it inflicts on the victim and the public. See ante, at 27-28. But the Court makes little attempt to defend these conclusions.

With respect to the question of moral depravity, is it really true that every person who is convicted of capital murder and sentenced to death is more morally depraved than every child rapist? Consider the following two cases. In the first, a defendant robs a convenience store and watches as his accomplice shoots the store owner. The defendant acts recklessly, but was not the triggerman and did not intend the killing. See, e.g., Tison v. Arizona, 481 U. S. 137 (1987). In the second case, a previously convicted child rapist kidnaps, repeatedly rapes, and tortures multiple child victims. Is it clear that the first defendant is more morally depraved than the second?
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With respect to the question of the harm caused by the rape of child in relation to the harm caused by murder, it is certainly true that the loss of human life represents a unique harm, but that does not explain why other grievous harms are insufficient to permit a death sentence. And the Court does not take the position that no harm other than the loss of life is sufficient. The Court takes pains to limit its holding to “crimes against individual persons” and to exclude “offenses against the State,” a category that the Court stretches–without explanation–to include “drug kingpin activity.” Ante, at 26. But the Court makes no effort to explain why the harm caused by such crimes is necessarily greater than the harm caused by the rape of young children. This is puzzling in light of the Court’s acknowledgment that “[r]ape has a permanent psychological, emotional, and sometimes physical impact on the child.” Ante, at 24. As the Court aptly recognizes, “[w]e cannot dismiss the years of long anguish that must be endured by the victim of child rape.” Ibid.

The rape of any victim inflicts great injury, and “[s]ome victims are so grievously injured physically or psychologically that life is beyond repair.” Coker, 433 U. S., at 603 (opinion of Powell, J.). “The immaturity and vulnerability of a child, both physically and psychologically, adds a devastating dimension to rape that is not present when an adult is raped.” Meister, Murdering Innocence: The Constitutionality of Capital Child Rape Statutes, 45 Ariz. L. Rev. 197, 208-209 (2003). See also State v. Wilson, 96-1392, p. 6 (La. Sup. Ct. 12/13/96),685 So. 2d 1063, 1067; Broughton, “On Horror’s Head Horrors Accumulate”: A Reflective Comment on Capital Child Rape Legislation, 39 Duquesne L. Rev. 1, 38 (2000). Long-term studies show that sexual abuse is “grossly intrusive in the lives of children and is harmful to their normal psychological, emotional and sexual development in ways which no just or humane society can tolerate.” C. Bagley & K. King, Child Sexual Abuse: The Search for Healing 2 (1990).

It has been estimated that as many as 40% of 7- to 13-year-old sexual assault victims are considered “seriously disturbed.” A. Lurigio, M. Jones, & B. Smith, Child Sexual Abuse: Its Causes, Consequences, and Implications for Probation Practice, 59 Sep Fed. Probation 69, 70 (1995). Psychological problems include sudden school failure, unprovoked crying, dissociation, depression, insomnia, sleep disturbances, nightmares, feelings of guilt and inferiority, and self-destructive behavior, including an increased incidence of suicide. Meister, supra, at 209; Broughton, supra, at 38; Glazer, Child Rapists Beware! The Death Penalty and Louisiana’s Amended Aggravated Rape Statute, 25 Am. J. Crim. L. 79, 88 (1997). (KENNEDY v. LOUISIANA, 2008 )

Bibliography

BOARD OF COUNTY COMMISSIONERS, WABAUNSEE COUNTY, KANSAS v. UMBEHR, 518 U.S. 668 (The Supreme Court June 28, 1996).
KENNEDY v. LOUISIANA, 554 U. S. ____ (The Supreme Court June 25, 2008 ).
SOSA v. ALVAREZ-MACHAIN ET AL., 542 U.S. 692 (The Supreme Court June 29, 2004).

Addendum

The following politicians have publicly denounced this decision of the court:

1. Senator McCain;
2. Senator Obama
3. Bobby Jindal, Governor of the State of Louisiana
4. Troy King, Atorney General, Alabama

Resources

1. Kennedy v. Louisiana opinion text
2. Scalia Dissents: Writings of the Supreme Court’s Wittiest, Most Outspoken Justice