Orin Kerr is running a poll of readers on whether the death penalty is (1) an appropriate policy choice and (2) constitutional in the case of a rape of a child under 12. The issue arises because of the Supreme Court’s grant of cert in Kennedy v. Louisiana. In Coker v. Georgia (1977), the Court held that the death penalty for rape (of an adult) was unconstitutional. But this is different.
As we are constantly fighting the tide of originalism based on evolving standards of decency, or the “living” Constitution, this situation reminds us that it’s a two way street. Whether it’s Brown v. Board of Education or Roe v. Wade, society doesn’t always see things the way we want it to, and while the evolution may trend toward the more civilized and thoughtful at times, it sometimes takes a step or more backwards toward brutality.
One comment to Orin’s survey struck a nerve.
I don’t see why the death penalty can’t be on the table for all violent felonies. If a prosecutor + jury + judge all agree a criminal deserves to die for a particularly heinous crime, why deny justice just because he didn’t happen to commit a homicide?
Why not? This isn’t to suggest that I want this to be the case, as I am against the death penalty per se. Nor does this implicate the imperfect outcomes of trial such that innocent people may be executed or one group, such as black men, are far more likely to receive the death penalty than others. This addresses a separate side of the issue, why the death penalty should arbitrarily be limited to homicide, treason and espionage.
From a policy perspective, the idea that there be graduated punishments for incrementally worse offenses forms the basis to object to the death penalty for the rape of a child. If the same punishment applies for a child’s rape as murder, then it’s an incentive to murder the raped child to eliminate the witness. This is a bad policy choice. But is it Constitutional?
The problem is that we cannot rely on a societal majority to always tip in favor of a kinder, more civilized, society. Ultimately, the choice between what is too cruel and barbaric and what is not is nothing more than a transitory whim. As pressure build, whether because of the perception that crime is out of control, or perhaps even the economy is in the toilet and people are feeling the pinch, frustration tends to compel people to seek simple, harsh solutions to the problem.
I’ve argued here many times that simple solutions to complex problems are almost always wrong, but I only get one vote (two if no one is looking). Others disagree with me, and they’ve elected a president who has appointed judges who don’t always share my sensibilities. So if state legislatures vote to impose the death penalty for jaywalking, who are we to say that it’s wrong? Sure, it offends my sense of justice and morality, but so what?
Since the mid-1980s, many of us have been scared by the tension between the right and left, fearing that society has turned ugly and mean, and has given up hope that our clients are salvageable. We watched as guidelines put our clients away for decades for no discernibly legitimate reason, except the hobgoblin of consistency (meaning everyone had to match the worst and lowest the legal system had to offer).
Anyone who reads Simple Justice regularly knows my feelings about crimes committed against children, and I’ve been chastised by many for my refusal to represent defendants accused of such crimes. But that doesn’t impair my reasoning when it comes to distinguishing between my visceral reaction to such crimes and my intellectual ability to recognize the assault on proportionality.
So does our meaner, nastier society get to devolve standards of decency back to the point where the death penalty should be available for a wide berth of crimes? How do we distinguish the evolving standards of decency with some fair degree of intellectual integrity so that we move forward and not back? Of course, even my phrasing betrays my bias. What becomes of us when proponents of the death penalty for a multitude of crimes reflect the sensibilities of our society? This is another tough one.
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Your post takes as received wisdom that the broader use of the death penalty would be moving back, not forward. I think that’s a defensible position — it surely used to be the case, and no longer is, that the DP is used more, err, liberally — but I think it’s one that needs to be argued, not assumed, is “progress.”
On the other side of it is that the lack of the DP and the rarity of life without parole has also — demonstrably — let people like Alfonso Rodriguez, despite having been convicted of multiple naughtinesses before, be in a position to murder Dru Sjodin.
(Just for the record: I’ve mixed feelings about the death penalty, largely because I think the justice system is far too flawed, at present; see the Cory Maye case, where it’s clear to me that a guy who actually killed the guy he’s been convicted of murdering shouldn’t have been convicted of, well, anything.
But I really won’t have any problem with Rodriguez — or Gary Gilmore or Ted Bundy, say — being executed.)
gee, I thought I was pretty clear that my views, that the death penalty was wrong and uncivilized, were biased was pretty clear. In fact, I actually said that my phrasing betrayed my bias. It’s not that I prefer taking a biased view, but just that I’m right and anyone who likes the death penalty is wrong.
In the meantime, where did you come up with the mistaken belief that life without parole is a rarity? Or that a couple of murderers you are happy to see executed makes the death penalty a good idea. After all, do you expect the courts to call you up before each execution and ask you if it’s okay with you?