Death Penalty Ruling

[Chilly]

http://blogs.usatoday.com/ondeadline/2008/...me-court-s.html

 

Has anyone read the whole ruling yet?

 

I'm not a fan of the death penalty for a number of reasons, but the blurbs that USA Today posted make it seem like a pretty weak ruling for the majority opinion:

 

... The evidence of a national consensus with respect to the death penalty for child rapists, as with respect to juveniles, mentally retarded offenders, and vicarious felony murderers, shows divided opinion but, on balance, an opinion against it. Thirty-seven jurisdictions—36 States plus the Federal Government—have the death penalty. As mentioned above, only six of those jurisdictions authorize the death penalty for rape of a child. Though our review of national consensus is not confined to tallying the number of States with applicable death penalty legislation, it is of significance that, in 45 jurisdictions, petitioner could not be executed for child rape of any kind.

 

Does this standard have legal precedent? It seems pretty sketchy to look at simply whether the states that have the death penalty currently use it for cases of child rape or not and call it a "national consensus". Seems to me they are leaving out loads of situational info without examining each state, and leaving out states that don't currently have the death penalty (which means its not a national consensus on using it on child rape, but rather at best a 'death-penalty states consensus').

 

... punishment by death may not result in more deterrence or more effective enforcement. In addition, by in effect making the punishment for child rape and murder equivalent, a State that punishes child rape by death may remove a strong incentive for the rapist not to kill the victim. Assuming the offender behaves in a rational way, as one must to justify the penalty on grounds of deterrence, the penalty in some respects gives less protection, not more, to the victim, who is often the sole witness to the crime.

 

Shouldn't this part of the ruling be up to the individual state legislature to decide? How does this provide evidence of it not being proportional to the rape of a child, or that it is unconstitutional?

 

...Each of these propositions, standing alone, might not establish the unconstitutionality of the death penalty for the crime of child rape. Taken in sum, however, they demonstrate the serious negative consequences of making child rape a capital offense. These considerations lead us to conclude, in our independent judgment, that the death penalty is not a proportional punishment for the rape of a child.

 

This seems like an especially poor argument to me, essentially saying "none of this stuff actually violates the constitution, we just don't like the end result of the ruling, so we're going to make it violate the constitution."

[KD in CA]

I dunno. I'm happy if they put him in the general pop after giving him sufficient publicity. These things have a way of working themselves out.

[HereComesTheReignAgain]

I know that if it was a member of my family that was raped, the rapist would get the death penalty. I can't imagine what the parents of one of the victims would be feeling, but I don't think I could restrain myself from going after the rapist myself. I know that is not the "right" response and you should leave justice to the courts.

[Endzone Animal]

Yet another bad ruling from a court that looks at the constitution as if it were the paper lining on the bottom of a birdcage.

[erynthered]

I didnt read the ruling, sorry. My take is that the SC thought that the Rapist would start to take out the only witnesses to their crime. I mean more often, as I know they do that too.

 

And I agree with you chknwing334, if someone raped one of my daghters I'd have a hard time staying away from the accused if you know what I mean.

[PastaJoe]

I don't support the death penalty but would support castration for such a case.

[Chilly]

I didnt read the ruling, sorry. My take is that the SC thought that the Rapist would start to take out the only witnesses to their crime.

 

Is this not a decision left to the state legislatures, and not to the courts?

[HereComesTheReignAgain]

This Representative should be removed from office immediately for this disgusting display. How could you ever justify trying to ruin a child's life to defend a rapist.

 

A Massachusetts politician and defense attorney has touched off a firestorm with his shocking public vow to torment and "rip apart" child rape victims who take the witness stand if the state legislature passed stiff mandatory sentences for child sex offenders.

 

Rep. James Fagan, a Democrat, made the comments during debate last month on the state House floor.

 

"I'm gonna rip them apart," Fagan said of young victims during his testimony on the bill. "I'm going to make sure that the rest of their life is ruined, that when they’re 8 years old, they throw up; when they’re 12 years old, they won’t sleep; when they’re 19 years old, they’ll have nightmares and they’ll never have a relationship with anybody.”

 

Fagan said as a defense attorney it would be his duty to do that in order to keep his clients free from a "mandatory sentence of those draconian proportions." Those comments drew the ire of local activists as well as colleagues.

 

http://www.foxnews.com/story/0,2933,371344,00.html

[slothrop]

I skimmed the decision. The main precedent the Court seems to rely upon is Coker v. Georgia, 433 U. S. 58.

 

The actual decision is very interesting, especially the part about the methodology the Court employs in Eighth Amendment cases.

[GG]

This Representative should be removed from office immediately for this disgusting display. How could you ever justify trying to ruin a child's life to defend a rapist.

 

A Massachusetts politician and defense attorney has touched off a firestorm with his shocking public vow to torment and "rip apart" child rape victims who take the witness stand if the state legislature passed stiff mandatory sentences for child sex offenders.

 

Rep. James Fagan, a Democrat, made the comments during debate last month on the state House floor.

 

"I'm gonna rip them apart," Fagan said of young victims during his testimony on the bill. "I'm going to make sure that the rest of their life is ruined, that when they’re 8 years old, they throw up; when they’re 12 years old, they won’t sleep; when they’re 19 years old, they’ll have nightmares and they’ll never have a relationship with anybody.”

 

Fagan said as a defense attorney it would be his duty to do that in order to keep his clients free from a "mandatory sentence of those draconian proportions." Those comments drew the ire of local activists as well as colleagues.

 

http://www.foxnews.com/story/0,2933,371344,00.html

 

Not having read the actual speech, somehow I have a feeling the quotes are a bit out of context.

[slothrop]

Is this not a decision left to the state legislatures, and not to the courts?

 

Yes, but the Court can strike the law down if it violates the Eighth Amendment. The SCOTUS, and not the states, is the final arbiter of what is constitutional or not.

[HereComesTheReignAgain]

Not having read the actual speech, somehow I have a feeling the quotes are a bit out of context.

 

 

Perhaps, but he does indicate that "as a defense attorney it would be his duty" which indicates that he would use that approach himself and would expect others to also. It would think any decent human would be able to defend a criminal without detroying a child victim's life. I realize that many defense attorneys and politicians are far from decent humans.

[erynthered]

Perhaps, but he does indicate that "as a defense attorney it would be his duty" which indicates that he would use that approach himself and would expect others to also. It would think any decent human would be able to defend a criminal without detroying a child victim's life. I realize that many defense attorneys and politicians are far from decent humans.

 

 

There is audio of it. I heard that guy yesterday. Sickening.

[bills_fan]

Perhaps, but he does indicate that "as a defense attorney it would be his duty" which indicates that he would use that approach himself and would expect others to also. It would think any decent human would be able to defend a criminal without detroying a child victim's life. I realize that many defense attorneys and politicians are far from decent humans.

 

 

Most judges will not allow that type of questioning from a defense attorney of a child witness.

 

 

... punishment by death may not result in more deterrence or more effective enforcement. In addition, by in effect making the punishment for child rape and murder equivalent, a State that punishes child rape by death may remove a strong incentive for the rapist not to kill the victim. Assuming the offender behaves in a rational way, as one must to justify the penalty on grounds of deterrence, the penalty in some respects gives less protection, not more, to the victim, who is often the sole witness to the crime.

 

This point actually makes a whole lot of sense and may be the reason the court decided the way they did.

[Adam]

I didnt read the ruling, sorry. My take is that the SC thought that the Rapist would start to take out the only witnesses to their crime. I mean more often, as I know they do that too.

 

And I agree with you chknwing334, if someone raped one of my daghters I'd have a hard time staying away from the accused if you know what I mean.

I have to say, this has to be the single best argument against the death penalty that I have heard. Amazing I have never heard this before

[Chilly]

Yes, but the Court can strike the law down if it violates the Eighth Amendment. The SCOTUS, and not the states, is the final arbiter of what is constitutional or not.

 

I fail to see how that clause = violating the 8th amendment.

[GG]

Perhaps, but he does indicate that "as a defense attorney it would be his duty" which indicates that he would use that approach himself and would expect others to also. It would think any decent human would be able to defend a criminal without detroying a child victim's life. I realize that many defense attorneys and politicians are far from decent humans.

 

Let's put a hypothetical around his speech.

 

He's arguing against the proposed law, and he's describing the most extreme case (not too dissimilar from these debates) to illustrate what may happen on the trial stand. Highly questionable that he would take that position in the courtroom, and that's why he said "someone far worse than me" to indicate that there may be aggressive defense attorneys who would go to all lengths to free their clients.

 

His argument is not to defend the defense attorneys or his potential conduct, but against passage of the law.

[HereComesTheReignAgain]

Let's put a hypothetical around his speech.

 

He's arguing against the proposed law, and he's describing the most extreme case (not too dissimilar from these debates) to illustrate what may happen on the trial stand. Highly questionable that he would take that position in the courtroom, and that's why he said "someone far worse than me" to indicate that there may be aggressive defense attorneys who would go to all lengths to free their clients.

 

His argument is not to defend the defense attorneys or his potential conduct, but against passage of the law.

 

I can't listen to the audio at work, but just based on what is quoted in the article, he seems to justify the tactic of ripping apart a young rape victim on the stand. I don't care what you feel your obligation to a defendant is, you would have to be sub-human to destroy a child to free a rapist.

 

I understand what you are saying though. He is trying to illustrate tactics that could be used to defend someone facing the death penalty. At very least, he chose a very poor way of explaining this and he will face a lot of backlash.

[blzrul]

I can't listen to the audio at work, but just based on what is quoted in the article, he seems to justify the tactic of ripping apart a young rape victim on the stand. I don't care what you feel your obligation to a defendant is, you would have to be sub-human to destroy a child to free a rapist.

 

I understand what you are saying though. He is trying to illustrate tactics that could be used to defend someone facing the death penalty. At very least, he chose a very poor way of explaining this and he will face a lot of backlash.

I don't like the idea of having children testify so I definitely hate the idea that they'll be ripped up on the stand (hint: it's been happening to grown female victims forever). But, the problem is the same as with an adult victim - there's a chance the accused could be innocent.

 

Remember that nursery school in CA which, by the time the police and courts were done, was sounding more like "The Crucible" than "The Crucible"? What was the name, McMertry or something? Basically a parent was convinced their child had been molested, next thing the school knew virtually the entire staff was either charged and/or jailed on various related charges which, after all, proved to be totally unfounded and had their roots in hysteria, and suggestivity when it came to interviewing the children? The worst is, the children BELIEVED what they were saying ... obviously they were convincing enough to get convictions.

 

I certainly wouldn't want my brother or his wife, teachers of children, to get the death penalty because some kid was confused, or even angry.

 

I'm not a fan of the death penalty anyway. I don't think it deters anyone and it's certainly not fair punishment. It costs the taxpayers less to have the creeps in general population for life without parole....a long time for them to learn EXACTLY what a rape victim feels like. THAT is a punishment that fits the crime.

[slothrop]

I fail to see how that clause = violating the 8th amendment.

 

The Court rationalized its decision by stating that criminal punishment has three aims: rehabilitation, deterrence, and retribution. It is retribution that is at issue with capital punishment. Here the Court warned: "It is the last of these, retribution, that most often can contradict the law's own ends. This is of particular concern when the Court interprets the meaning of the Eighth Amendment in capital cases. When the law punishes by death, it risks its own sudden descent into brutality, transgressing the constitutional commitment to decency and restraint."

 

The crux of the Court's arguments can be found in this passage:

 

For these reasons we have explained that capital punishment must "be limited to those offenders who commit 'a narrow category of the most serious crimes' and whose extreme culpability makes them 'the most deserving of execution.' " Roper, supra, at 568 (quoting Atkins, supra, at 319). Though the death penalty is not invariably unconstitutional, see Gregg v. Georgia, 428 U. S. 153 (1976), the Court insists upon confining the instances in which the punishment can be imposed.

 

Applying this principle, we held in Roper and Atkins that the execution of juveniles and mentally retarded persons are punishments violative of the Eighth Amendment because the offender had a diminished personal responsibility for the crime. See Roper, supra, at 571-573; Atkins, supra, at 318, 320. The Court further has held that the death penalty can be disproportionate to the crime itself where the crime did not result, or was not intended to result, in death of the victim. In Coker, 433 U. S. 584, for instance, the Court held it would be unconstitutional to execute an offender who had raped an adult woman.

 

This case stands for a larger principle - the death penalty is ONLY constitutional when the crime being punished results in death. Otherwise the punishment in disproportionate and thus violative of the Eighth Amendment.