Evolving standards of decency

Matthew Hoy
By Matthew Hoy on June 26, 2008

On Wednesday, the Supreme Court Legislature took an impromptu survey of the states and decided that since a bunch of them hadn't rushed to extend the death penalty to child rapists in the past few years, that the nation's "evolving standards of decency" prohibits the death penalty for those most despicable people. [PDF of the ruling is here.]

Ever since the Supreme Court reinstated the death penalty more than 30 years ago, justices have been finding ways to limit it.

The court has ruled that even among murderers, only those who commit a "narrow category of the most serious crimes" are eligible for death in states that allow it. In recent years, the court has said it was following the evolving standards of society in ruling that the mentally retarded and those who commit murder as juveniles cannot be executed. No such national consensus exists for putting child-rapists to death, Kennedy said. Six of the 36 jurisdictions that authorize the death penalty -- states and the federal government -- extend it to those convicted of raping a child, he wrote.

Alito said the tally is disingenuous in light of a 1977 decision by the court that many had interpreted as saying that capital punishment could not be applied to a rapist.

Even though Coker v. Georgia concerned a 16-year-old "adult woman," Alito said the decision "posed a very high hurdle" for states that wanted to impose capital punishment for those who rape children.

Louisiana was the first, in 1995, and has been followed by Montana, South Carolina, Oklahoma and most recently Texas. (Florida and Georgia have older laws that have been called into question by state courts.) They might have been the start of a "strong new evolutionary line" forming a national consensus for executing child-rapists, Alito said, but "we will never know, because the court today snuffs out the line in its incipient stage."

Superlegislator Kennedy also noted in his opinion that if the court upheld the death penalty as an option for child rapists that it might encourage rapists to go ahead and kill the child. That is certainly a valid question ... that should be decided by legislators -- not judges.

Some more thoughts:

From Ed Whelan of NRO's "Bench Memos:"

Specifically, Kennedy observes, “It is not at all evident that the child rape victim’s hurt is lessened when the law permits the death of the perpetrator.” For, you see, the victim will have to testify and meet with law enforcement personnel, and “society … by enlisting the child victim to assist it over the course of years in asking for capital punishment forces a moral choice on the child, who is not of mature age to make that choice.”

How galling. Set aside that child victims face similar burdens in non-capital cases and that Kennedy doesn’t meaningfully measure the incremental burden that capital cases impose. Why shouldn’t prosecutors and the child’s family be trusted to work out sensible arrangements? How does Kennedy’s concern give him any basis for overriding Louisiana’s law?

As happens throughout the opinion, Kennedy couches his decision on whether the death penalty for child rape violates the constitution's prohibition against cruel and unusual punishment in policy terms rather than in legal terms.

That's not your job. It's not your place. Knock it off.

Orin Kerr over at the Volokh Conspiracy starts off a lengthy discussion. I want to highlight this post by "Orion."

As a firm opponent of the death penalty, I wish I could feel vindicated by this decision, but instead I just feel nauseated. So first, we engage in this ridiculous exercise in state counting. So what the federal constitution says depends on what the state legislatures do, and if enough states pass unconstitutional laws, suddenly they become constitutional. I cannot believe that opinions endorsing this absurdity continue to gain the support of five justices of the supreme court.

Then, of course, we must weigh in with "our own judgment" on the issue -- ugh, don't even want to go there.

I've long considered myself a believer in the idea of the "living constitution", but as time goes on, I become more and more convinced that Scalia-style originalism is the only principled philosophy of Constitutional interpretation (as much as the results might often be unpalatable to me as a matter of policy).

Exactly! And if the results are unpalatable to you, the result isn't to get judges who share your same ideology on the court, but it is to get the legislative and executive branches -- as a reflection of the popular will -- to change the laws. That's how a representative democracy is supposed to work. But we've got five justices on the Supreme Court who have decided that they know best.

Both senators John McCain and Barack Obama condemned the ruling. What no one has yet bothered to ask Sen. Obama is why he would expect to get anything different considering that at least four of the judges in the majority are models for those he'd nominate. Sorry, but "I condemn this ruling" shouldn't be enough. Unfortunately, the press has decided that they're not going to ask tough questions of Obama.

On a related note: That's why last week's ruling in the Gitmo habeus case was so anti-democratic. The judicial branch had said that the executive and legislative branches needed to create some process for handling these terrorist detainees. The Congress and President got together and passed a law doing just that. The court's response was to say: "That's not good enough" and gave the terrorists more rights and directed district judges to come up with rules (read: laws) on how to proceed on their own.

0 comments on “Evolving standards of decency”

  1. The NY Times, in an editorial praising the SCOTUS decision here, also lambasts the SCOTUS for reducing the punitive damages in the Exxon Valdez case. In their words, punitive damages are necessary to punish and deter. I guess they don't believe in the notion of punish and deter in the most heinous of crimes.


To be clear, it's still a 1A violation even as they supposedly intended it. But their rush to pass it made it encompass all sorts of stuff.

The judge should not take them at their word that they will "fix" it. The judge should issue the preliminary injunction we requested.

Load More


June 2008



linkedin facebook pinterest youtube rss twitter instagram facebook-blank rss-blank linkedin-blank pinterest youtube twitter instagram