Death Penalty Ruling

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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.

 

To play devils advocate...How many people did the Rosenberg's kill?

[Endzone Animal]

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.

This ruling is a judicial error. The constitution and the 8th ammendment do not tell the legislature what crimes they are forbidden to pass laws imposing the death penalty for. Rather, this is a practice called "judicial activism", or re-interpereting the constitution to fit the EVOLVING STANDARDS of the progressive worldview of the judges themselves. It is essentially making the legislature obsolete, as it empowers the courts to declare what is constutional based on arbitrary opinions of how society should be formed according to the Lifetime Appointed Ones.

[slothrop]

To play devils advocate...How many people did the Rosenberg's kill?

 

Justice Kennedy adresses taht very point by limiting this ruling to person-on-person crimes. From an Article published by Cornell Law school:

 

Kennedy argues that crimes that are not person-on-person (i.e., terrorism, espionage, air piracy) are not in the same category as murder. Therefore, imposing the death penalty for these crimes does not contradict the what he argues is the central theme of Coker, that the only person-on-person crimes for which the death penalty is appropriate are those resulting in death. Brief for Petitioner at 26. Kennedy supports his argument against expanding review to include non-person-on-person crimes by noting the Coker Court's refusal to broaden the scope of its decision in this way. Id. at 32.

[Adam]

This ruling is a judicial error. The constitution and the 8th ammendment do not tell the legislature what crimes they are forbidden to pass laws imposing the death penalty for. Rather, this is a practice called "judicial activism", or re-interpereting the constitution to fit the EVOLVING STANDARDS of the progressive worldview of the judges themselves. It is essentially making the legislature obsolete, as it empowers the courts to declare what is constutional based on arbitrary opinions of how society should be formed according to the Lifetime Appointed Ones.

This is a case of over the past 8 years that each branch has constantly overstepped their bounds. A terrible 8 years...........

[Bill from NYC]

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

 

It wouldn't work. The pedophiles would use objects instead.

 

Killing them would be a good thing for society.

[Adam]

It wouldn't work. The pedophiles would use objects instead.

 

Killing them could be a good thing for society.

Corrected. Always remember that the death penalty is the last resort, and NEVER should be punitive. To use it in a punitive fashion would be defeating the purpose.

 

That isn't directed at you, Bill, but some people want it to be used that way.

[Chilly]

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:

 

 

 

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.

 

Interesting, thanks. Looks like I need to go read up on Gregg v Georgia.

[slothrop]

This ruling is a judicial error. The constitution and the 8th ammendment do not tell the legislature what crimes they are forbidden to pass laws imposing the death penalty for. Rather, this is a practice called "judicial activism", or re-interpereting the constitution to fit the EVOLVING STANDARDS of the progressive worldview of the judges themselves. It is essentially making the legislature obsolete, as it empowers the courts to declare what is constutional based on arbitrary opinions of how society should be formed according to the Lifetime Appointed Ones.

 

I think you are mostly wrong. The "judicial activism" label is usually applied to how the Court handles substantive due process (the very concept people like Scalia hate). This is where Justice Douglas famously found that U.S. citizens have a fundamental right to privacy, which is found within the "penumbra of rights" necessary to enforce the enumerated rights in the Constitution.

 

Your judicial activism charge relating to the Eighth Amendment is misplaced because the the amendment expressly prohibits cruel and unusual punishment, which applies to the states through the 14th amendment. Also the Court articulated in the Kennedy case the legal analysis to be applied and its necessity - it requires a balancing or view of morality which always changes with time:

 

he Eighth Amendment, applicable to the States through the Fourteenth Amendment, provides that "[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." The Amendment proscribes "all excessive punishments, as well as cruel and unusual punishments that may or may not be excessive." Atkins, 536 U. S., at 311, n. 7. The Court explained in Atkins, id., at 311, and Roper, supra, at 560, that the Eighth Amendment's protection against excessive or cruel and unusual punishments flows from the basic "precept of justice that punishment for [a] crime should be graduated and proportioned to [the] offense." Weems v. United States, 217 U. S. 349, 367 (1910). Whether this requirement has been fulfilled is determined not by the standards that prevailed when the Eighth Amendment was adopted in 1791 but by the norms that "currently prevail." Atkins, supra, at 311. The Amendment "draw its meaning from the evolving standards of decency that mark the progress of a maturing society." Trop v. Dulles, 356 U. S. 86, 101 (1958) (plurality opinion). This is because "[t]he standard of extreme cruelty is not merely descriptive, but necessarily embodies a moral judgment. The standard itself remains the same, but its applicability must change as the basic mores of society change." Furman v. Georgia, 408 U. S. 238, 382 (1972) (Burger, C. J., dissenting).

[Gavin in Va Beach]

It wouldn't work. The pedophiles would use objects instead.

 

Killing them would be a good thing for society.

 

 

Indeed. When a body has cancer, you don't remove the cancer cells and keep them locked up for a few years, try to rehabilitate them, and then return them to the body and hope for the best. You kill the cancer cells.

 

When a society has cancer...

[Philly McButterpants]

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

 

I think justice would be best served by giving the parents of said child an aluminum baseball bat and 10 minutes in a locked room with the rapist. I think you would be hard pressed to find an average American who would find that cruel or unusual.

[Endzone Animal]

I think you are mostly wrong. The "judicial activism" label is usually applied to how the Court handles substantive due process (the very concept people like Scalia hate). This is where Justice Douglas famously found that U.S. citizens have a fundamental right to privacy, which is found within the "penumbra of rights" necessary to enforce the enumerated rights in the Constitution.

Douglas was the embodiment of judicial activism.

 

Your judicial activism charge relating to the Eighth Amendment is misplaced because the the amendment expressly prohibits cruel and unusual punishment, which applies to the states through the 14th amendment. Also the Court articulated in the Kennedy case the legal analysis to be applied and its necessity - it requires a balancing or view of morality which always changes with time:

Judicial activism specifically refers to the judicial philosophy of "evolving standards" rather than "textualism" or "constructionism". Kennedy used the term "evolving standards" in his majority opinion explaining why the liberal judges on the court decided to overturn existing death penalty laws in 6 states. This decision you may agree with if you believe in the practice of judicial activism, but that doesn't change the fact that it is law being invented by justices who have a progressive world view and use the loophole created by Douglas to legislate from the bench.

 

“If you think aficionados of a living Constitution want to bring you flexibility, think again. You think the death penalty is a good idea? Persuade your fellow citizens to adopt it. You want a right to abortion? Persuade your fellow citizens and enact it. That’s flexibility. Why in the world would you have it interpreted by nine lawyers?” -Antonin Scalia

[PastaJoe]

It wouldn't work. The pedophiles would use objects instead.

 

Killing them would be a good thing for society.

 

I should have mentioned that I was also assuming they would be given life in prison with no possiblity of parole as opposed to the death penalty.

[HereComesTheReignAgain]

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.

 

I would think that the death penalty would be reserved for cases where the physical evidence along with victim testimony was very convincing.

[slothrop]

Douglas was the embodiment of judicial activism.

 

 

Judicial activism specifically refers to the judicial philosophy of "evolving standards" rather than "textualism" or "constructionism". Kennedy used the term "evolving standards" in his majority opinion explaining why the liberal judges on the court decided to overturn existing death penalty laws in 6 states. This decision you may agree with if you believe in the practice of judicial activism, but that doesn't change the fact that it is law being invented by justices who have a progressive world view and use the loophole created by Douglas to legislate from the bench.

 

“If you think aficionados of a living Constitution want to bring you flexibility, think again. You think the death penalty is a good idea? Persuade your fellow citizens to adopt it. You want a right to abortion? Persuade your fellow citizens and enact it. That’s flexibility. Why in the world would you have it interpreted by nine lawyers?” -Antonin Scalia

 

Douglas did not create the Eighth Amendment. The cases used, in part, by the Court analyzing the Eight Amendment predate Douglas. This case did not involve substantive due process which Douglas famously wrote about. It is a hard rule written in the constitution (unlike right to privacy) that a crime can not be cruel and unusual. What is cruel and unusual? well the Court has defined that as, in part, involving proportionality. The practice of law is about interpreting laws - even Scalia would agree with that. Your problem is with the interpretation.

 

How do you think the Eighth Amendment should be interpreted?

[John Adams]

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.

 

His point, I believe, is that children shouldn't be forced to be witnesses. He makes the argument by pointing out what he *C*ould do to a child witness--his example reads poorly because it makes it sound as if he would do this unequivocally. I don't think he's advocating attacking children on the stand so they later throw up and have nightmares.

[John Adams]

It wouldn't work. The pedophiles would use objects instead.

 

Killing them would be a good thing for society.

 

Yeah. I am not a fan of the death penalty because there are enough cases where juries get it wrong, but I'd much rather see it enforced for child rape cases than murders.

[Pine Barrens Mafia]

Corrected. Always remember that the death penalty is the last resort, and NEVER should be punitive. To use it in a punitive fashion would be defeating the purpose.

 

That isn't directed at you, Bill, but some people want it to be used that way.

 

Why shouldn't it be? The animals that undertake these heinous crimes should be PUBLICLY and TORTUOUSLY executed.

[Pine Barrens Mafia]

I should have mentioned that I was also assuming they would be given life in prison with no possiblity of parole as opposed to the death penalty.

 

And what of the victim? What of their sentence? They will NEVER live a normal life. Sure, they may recover to some extent, but the horror of what they experience wilL NEVER truly go away.

 

Why should anyone that does that to a child deserve the chance to live out their natural life?

[John Adams]

And what of the victim? What of their sentence? They will NEVER live a normal life. Sure, they may recover to some extent, but the horror of what they experience wilL NEVER truly go away.

 

Why should anyone that does that to a child deserve the chance to live out their natural life?

 

Killing the attacker doesn't change the victim's horror.

[erynthered]

Killing the attacker doesn't change the victim's horror.

 

Maybe not. But it sure might give them some closure.