Convicted child rapist Patrick Kennedy has now successfully avoided his death sentence approved by the jury in his trial in 2003 because the Supreme Court has again found that yet another class of convicted criminals- this time, child rapists- are not eligible for the death penalty. In a controversial 5-4 decision, Justice Anthony Kennedy concluded with the majority that state laws allowing for the death penalty in extreme rape cases, including those involving child rape, simply don’t cut it when it comes to constitutional standards. Louisiana, where Kennedy committed and was convicted of raping an eight year old, and five other states have the death penalty option for criminals convicted of rape. The case comes as one in a long line of Supreme Court opinions on the Eighth Amendment that have substantially limited death penalty options in criminal cases. “We conclude,” Kennedy wrote, “that, in determining whether the death penalty is excessive, there is a distinction between intentional first-degree murder on the one hand and nonhomicide crimes against individual persons, even including child rape, on the other.” There is indeed a distinction between a homicide and child rape, and yet one that the Court utterly failed to recognize.
Kate Bartholomew, an assistant district attorney in Orleans Parish, Louisiana, who deals with cases much like the one before the Supreme Court, discussed Louisiana’s reasons for having the option available in cases of child rape. “A lot of people think there should not be a death penalty because the child survives…In my opinion, the rape of a child is more heinous and more hideous than a homicide.” In cases of child rape, the assault, “takes away their innocence. It takes away their childhood. It mutilates their spirit. It kills their soul.” While the Court seems preoccupied in digging up reasons why states can’t simply give juries the option of using the death penalty, it has ignored the helpless victims, like the one in this case, who suffer for years as a result of an irreprehensible crime against their person.
Justice Kennedy was forced to concede that child rape causes “more prolonged physical and mental suffering” than most homicides, but yet overruled the jury’s decision to sentence Kennedy to death for his extremely violent crime, because, “we conclude there is a national consensus against capital punishment for the crime of child rape.” The Court seems deeply intent on protecting the ever-growing rights of the violator, while denying the determined justice to the violated. As Justice Alito, disagreeing with the majority, wrote, the majority of the court has made a blanket judgment against capital punishment, “no matter how young the child,…no matter how much physical and psychological trauma is inflicted and no matter how heinous the perpetrator’s criminal record may be.”
The Court used a series of legal tests and mechanisms to figure out if the Louisiana law violated the Eighth Amendment to the Constitution which prohibits all “cruel and unusual punishment.” In Justice Kennedy’s decision, he repeatedly used the language from the 1958 case, Trop v. Dulles, which prohibited the removal of citizenship for deserters during wartime, which stated that the ‘cruel and unusual’ clause “draw[s] its meaning from the evolving standards of decency that mark the progress of a maturing society.” Ambiguous language such as this places the Court in a perfect position to narrow or widen the scope of this part of the Constitution to basically any degree. According to past interpretations of this legal jargon, the Court discovers what the nation’s ‘evolving standards’ with regards to the death penalty are, by looking through their crystal ball of what they term ‘objective indicia’ of the ‘national consensus’ with regards to the death penalty. Indeed the Court’s journey through the history of the Eighth Amendment is riddled with past cases which continuously echoed, but variously applied the ‘evolving standards of decency.’ Most recently, using the infamous language from Trop, the Court decided the landmark case Roper v. Simmons which prohibited the death penalty for juvenile offenders. In this case, however, the Court drew national attention when they decided what this case’s ‘evolving standards of decency’ were based on international standards from countries randomly selected by then-Justice O’Connor, who wrote the majority opinion. In Wednesday’s decision, Kennedy v. Louisiana, Justice Kennedy at least decided to stick with determining national consensus based on the laws of U.S. states, however, the attorneys representing the State of Louisiana pointed out just how flawed this standard was with their arguments.
In oral arguments, Louisiana contended that even though a majority of states across the nation leave out the death penalty except in cases where the victim is murdered, more and more states are considering expanding where the death penalty applies- including, applying it in cases of child rape. The Court rejected basing their judgment of national consensus on proposed state legislation, as well they should have. But the argument goes to show just how unstable and flimsy the standard is. Using the ‘evolving standards’ test means that now, any time a capital punishment case comes before federal judges, the courts must again measure the ever-changing thermometer of national opinion about the death penalty. If in ten years, 25 states have added child rape as a capital crime, what should the courts do then? Well, judging by how Eighth Amendment law has been conveniently shifty, they will probably invent a new standard. The problem with a standard that makes a test out of whether or not something conforms to ‘evolving standards’ means that that part of the law is, well, evolving, ever-changing and never consistent. The Court’s decision hammers yet another nail in the coffin from ever having a clear interpretation of the Eighth Amendment. It is opinions that conform to subjective standards like these that mock the very nature of the Constitution and the grave and serious suffering that young victims like the one Patrick Kennedy raped in 2003 undergo each and every day.
It seems that Liberalism has control of the courts quite well. IT SEEMS OBVIOUS THERE ARE FEW IF ANY TRULY LEARNED MEN SITTING THE BENCH THESE DAYS. Cruel and unusual if applied and it was at one time meant flog and beating outside humiliation of the prisoner in stocks and chains. The founders in their writing used common sense, something which seems lacking in our courts today. And they did not use standard of their day they used an older and morally based standard in making their choice and in how they applied them found in a book we now reject yet it was and is key to our nations very soul..
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It seems that Liberalism has control of the courts quite well. IT SEEMS OBVIOUS THERE ARE FEW IF ANY TRULY LEARNED MEN SITTING THE BENCH THESE DAYS.
Cruel and unusual if applied and it was at one time meant flog and beating outside humiliation of the prisoner in stocks and chains. The founders in their writing used common sense, something which seems lacking in our courts today. And they did not use standard of their day they used an older and morally based standard in making their choice and in how they applied them found in a book we now reject yet it was and is key to our nations very soul..
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