Regarding a recent Supreme Court decision - I’d like to steer this discussion towards the points of law and constitution, rather than personal feelings on the death penalty as such.
Points of law involved:
#1 - Constitution, 10th amendment: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
#2 - Constitution itself, Section 3, Clause 2: “Clause 2: The Congress shall have Power to declare the Punishment of Treason…”
#3 - 18 USC 2381: “Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason and shall suffer death, or shall be imprisoned not less than five years and fined under this title but not less than $10,000; and shall be incapable of holding any office under the United States.”
This is interesting because in the opinion, in order for the Supreme Court to basically abolish the 10th amendment, the majority opinion reads as follows:
Our concern here is limited to crimes against individual persons. We do not address, for example, crimes defining and punishing treason, espionage, terrorism, and drug kingpin activity, which are offenses against the State. As it relates to crimes against individuals, though, the death penalty should not be expanded to instances where the victim’s life was not taken.In other words: the SC is actively saying that the right to define their own punishments is something the states do not have - that while the Federal Government is allowed to pass a law mandating death for a crime in which no murder is committed, the states themselves are somehow barred from the same.
Now, “the State”, as such, is a collection of individuals - namely, the collective individual persons (as Justice Kennedy conveniently forgets) who make up this nation. One of the whole points of the US system of government is to prevent monarchical “The State” setups that arbitrarily relegate us “individual persons” away.
One gets the feeling the framers of the Constitution are spinning in their graves. Maybe we could hook them up to a generator for some free electricity.
I don’t know, it seems to me that the rights of states to assign punishments has always been curtailed by the courts. That’s as I think that it should be. If a legislature passes a law that proposes the death penalty for jaywalkers, that’s a very disproportionate punishment and I think that the courts would be out of bounds by intervening. Child rape is closer to murder than jaywalking, but the line for court interference has to exist somewhere. Which side heinous but non-fatal, non-treasonous offenses falls on that is subject to debate.
I thought that the ruling (and the reasoning behind the ruling) against executing the mentally handicapped was worse than this one. Drawing a distinction between “crimes against people” and “crimes against the state” may be a little strained, but only a little. Were it not written in the Constitution it seems likely that treason would not be a capital crime (or the making it of such would not be constitutionally permissible). However, treason was a much bigger deal at the time of the writing of the Constitution than it is now (because the Republic was unstable then but has been stable for some time), so it’s sort of grandfathered in.
I walk a line on the issue. I’d like the death penalty abolished, though I don’t want it done through the courts. I think it is particularly bad policy to expand the death penalty to non-capital (non-treasonous) crimes. Bad enough for the courts to step in? Probably not, though I’m not sold either way.
Comment by trumwill — June 26, 2008 @ 10:10 pm
Seems to me that use of the death penalty in the early days of the Republic should be considered proof that the prohibition on cruel and unusual punishment was not intended to apply to the death penalty. And in fact the death penalty was used in those days, occasionally even for property crimes. The ESPY file has a list of all documented executions in the US, and it includes entries for things like forgery, burglary, and grand theft horse.
Comment by Brandon Berg — June 26, 2008 @ 11:10 pm
It’s ridiculous to apply the death penalty for rape or childrape, because there is no proportion between crime and punishment. Rape is a serious crime, but in no way capital. I’m againt the death penalty, but I understand that it can be applied for murder or for treason during wartime.
Comment by Gannon — June 27, 2008 @ 7:37 am
Raping a child scars them for the rest of their lives, making it difficult, if not impossible, to form meaningful relationships. You are damning that child to a sub-par life. I believe you are damaging their soul. Of course, I also believe that existance doesn’t with this life, so I have a more open approach to when capital punishment should be used. The four other states that had the death penalty for child rape were for repeat offenders, much more heinous than a single attack. Some people are seriously messed up and we just saw an inmate rape and kill a prison guard the other day, so I’m thinking some people, for the safety of the rest of us, should be permanently and completely removed from society.
Comment by Willard Lake — June 27, 2008 @ 9:05 am
Willard, just for the sake of getting facts straight - I wonder if there’s clinical evidence of what the future holds for children who were raped? Is there any kind of study that looks at the lives of kids 10, 20, 30 years after they were raped and provides a scientifically-based conclusion on the effect it has on their long-term psyche? I don’t doubt that it does, but I wonder about the resilience of some people’s spirit to rise above the evilness of such an attack and not let it ruin their lives. Even as children.
Also, though I imagine you’re speaking metaphorically I don’t believe there’s any way a human can “damage” the soul of another human. If you believe such a thing that the soul survives the body’s death, even a heinous thing as the rape of a child cannot damage the soul. Now if you’re talking the psyche, that’s different than the soul. But only if you believe in the immortality and quasi-divine nature of the soul.
Comment by Barry — June 27, 2008 @ 2:33 pm
More metaphorical than anything else, and partly due to my definition of soul being a spirit united with a body.
One thing I’ve been thinking about is why the other states had capital punishment for repeat offenders only. Most child rape occurs by a member of the family, and a quite believable argument is the child would be less likely to speak up about the abuse if they knew they were sentencing the family member to die.
But, yes, I think there should be a line drawn on this side of murder for when capital punishment is acceptable. Where exactly it is… well, I guess we can’t leave that up to the courts to decide.
Comment by Willard Lake — June 27, 2008 @ 2:54 pm
A fair punishment for rape seems around 5 year of prison. The rape of a child or of a virgin woman should be penalized with 10 years. Really, only murder or endangering a whole society (treason in times of war) seems death penalty adequate. Only a murder deserves death. And even so, I’m against the death penalty.
Comment by Gannon — June 27, 2008 @ 7:13 pm