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June 26, 2008

Will (and can) "outraged" politicians really do anything about Kennedy?

As detailed in this AP article, headlined "Unbowed, politicians vow to execute child rapists," and this CBN News article, headlined "Politicians Outraged by Child Rape Ruling," many elected officials are not too pleased with the Supreme Court's work in Kennedy declaring unconstitutional all capital child rape laws.  Here are the basics from the CBN story:

Dissent from the high court's ruling reverberated around the country from Louisiana — the state where the case originated — to various levels of government. "I think the rationale for this ruling was faulty — was absurd," Louisiana's Governor Bobby Jindal said.

There was even outrage on the campaign trail, where both contenders for the White House condemned the justices' decision. And some states promised to keep looking for ways to hand down the death sentence for child rapists.

Though I can see the basis for political outrage, I do not see what states can do to work around this ruling, at least not until they can develop lots of pertinent evidence that there is a national consensus in favor of making child rapists death eligible.  And it is not even clear that such evidence would readily lead the Kennedy five to change course given their "independent judgment" against all such laws.

Here's an idea for the politicians who are really annoyed and really want to do something: propose and pass a legislative resolution saying that they strongly believe that the evolved moral norms of their constitutents would support the possibility of capital child rape for horrific, extreme cases involving multiple victims and repeat offenders.  I think that such a general resolution (which would not change and state laws and should be hard to vote against) could get lots of support in lots of state legislatures.  And if a majority of legislatures were to pass such a resolution, perhaps states other that Louisiana could try to get their (more narrowly tailored) capital child-rape laws upheld.

Some related posts:

June 26, 2008 at 12:43 PM | Permalink


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Tracked on Jun 26, 2008 3:39:23 PM



Wise suggestions.

Posted by: Bill Otis | Jun 26, 2008 2:07:11 PM

Naive. The reaction of the politicians you refer to is typical knee-jerk reaction based on the usual fear of being labeled soft on crime - the very criticism you have made in earlier posts, and which has in large part led to the current debacle of sentencing policy.
It would be nice to see some consistency in your arguments, though I fear you have become so determined to display a pro-death penalty stance these days, that many of your past positions are unraveling.

Posted by: peter | Jun 26, 2008 3:50:05 PM

Peter, can you open you mind to the possibility that lots of people may view death as a just punishment for repeat child rapists and that politicians in a democracy should respect and respond to this view?

I do not see fear as much as anger driving the anti-democratic work being done by SCOTUS in Kennedy.

It is not that I am pro-death-penalty. Rather, I am pro-informed democracy. And I think an informed public might want more executions and fewer prison cells...

I am not going to fight over whether I am being consistent, though I do find folks who are categorically against the death penalty (despite popular support) but not categorically against self-defense or war or abortion fail to respect concepts of life consistently. Are you categorically against state approved and supported killings in all these other settings, peter?

Posted by: Doug B. | Jun 26, 2008 4:33:15 PM

Your final question, though an irrelevant diversion, can easily be answered in this way. I support the right to life of all individuals who have attained a state of growth that the informed science/medical community agree represents a sustainable state of independent human existence. Within that context, the bearer of potential life is entitled to make a personal decision free of political, legal or doctrinal pressure - personal freedom to make a choice being an icon of democracy. With regard to self-defense and war, the basic premise is that a violent response should, if necessary to protect life, be proportionate to the threat and as necessary to neutralize it. Killing for its own sake is never legally or morally acceptable, whether by the individual or by the state. I regard that as a consistent view.
Further, my view is that SCOTUS is charged with making judgments affecting the practical application of law, in the context of a written constitution and in the context of a developing society. The Constitution was written to promote and protect freedom and democracy by offering a small set of guiding principles. These did not arise out of a democratic process however, and they are not subject to popular opinion today as determined and often manipulated by politicians. The standards of an evolving society are indeed not always well reflected by it's politicians or straw polls.
I think the evidence is now quite clear that an informed public wants fewer executions AND fewer prison cells. An effective and committed democratic government would be attempting to achieve that through the full spectrum of political, legal and social measures available to it. SCOTUS is right to protect and reflect the progress of society as a whole rather than the short term ambitions of politicians, or the vagaries of straw polls.

Posted by: peter | Jun 26, 2008 6:11:50 PM

Peter - a simple, no I am not consistent with respect to the concept of life would have been sufficient.

Posted by: NewFedClerk | Jun 26, 2008 10:16:30 PM


"Peter - a simple, no I am not consistent with respect to the concept of life would have been sufficient."

But it also would have been revealing, which is why you didn't get it.

Posted by: Bill Otis | Jun 27, 2008 6:18:31 AM


Is it really your view that intelligent people of good faith cannot disagree with your stance on the death penalty?

John Stuart Mill disagreed with it. I don't believe he is ordinarily thought of as being a dope. George Bernard Shaw also disagreed with it.

For that matter, so does Barack Obama, former editor of the Harvard Law Review and lecturer in Constitutional Law at the University of Chicago.

Is he a dope? Is he a bad person?

Please post any evidence you have in support of your assertion that "an informed public wants fewer executions..." In doing so, I hope you won't simply define the class so that "informed public" = "people who agree with me." You can't just define the opposition into non-existence.

Having asked for your evidence, I'll give you mine. Gallup did a poll on this (you can check this by Googling "gallup death penalty"). His polls are regarded as more authoritative than "straw" polls (whatever that means). Indeed I believe Gallup is regarded as the gold standard of polling.

In October 2007, Gallup asked respondents nationwide what they thought of the frequency of death sentences. He found that 21% thought they were too frequent, 27% said the frequency was about right, and 49% said they weren't frequent enough.

These findings rebut your claim that an evolving society has turned against the death penalty. If you have counter-evidence, I'm all ears.

Posted by: Bill Otis | Jun 27, 2008 8:11:12 AM

The politicians are just yapping b/c it's election season and because "child rape is bad" is what they know people want to hear, and they can frame the SCOTUS decision as "child rape is good" (in America, either it's bad or it's good... if you can't kill someone for something it must not be bad... thus it must be good... and that's bad!).

They'll leave it alone either after election season or after our 30 second attention spans forget about it, whichever comes first.

Posted by: bruce | Jun 27, 2008 10:10:42 AM

"...intelligent people of good faith cannot disagree with your stance on the death penalty?"
I have never made that claim. I set out my own position clearly and I have given reasons why I disagree with contrary views. If I draw attention to inconsistencies in the stated positions of others, or refute unsupportable claims, it is because they exist.
Obama says what he does because he is fighting an election and does not want the opposition to hijack a sensitive issue. Regrettable but understandable. It is why it is virtually impossible for the death penalty to end via legislation from Congress, and we are dependent on the slow pace of reform in individual states or the wisdom of the Supreme Court.
But moving to the evidence you seek for the assertion that "an informed public wants fewer executions" .......... a Gallop Poll does not interview an informed public; it interviews joe public. Those who are genuinely "informed" are those who are involved in the process in some way - Jurors, victim's families, attorneys, even prosecutors - and the overwhelming evidence is that they are showing a marked shift of preference away from executions in favor of LWOP. The latest headlines out of Ohio, and before that, Texas, confirm the trend. Joe public is beginning to catch on. Maybe a few more Law Professors may follow. The motivations may appear various - but the common thread is the acceptance of the result - the saving of life. Questions like those put out by Gallop are worthless because they are put out of context and in the absence of information from which a reasoned judgment can be made. If democracy relied on the results of a Gallop Poll, it wouldn't survive for very long.

Posted by: peter | Jun 27, 2008 12:14:01 PM

So worries about popular elections are why the death penalty isn't abolished? Silly me, I thought the whole representative government ensured that if a majority of folks viewed the death penalty as a bad thing, then it would actually benefit a candidate to stake that ground. Or, it could be that the public just doesn't believe that abolishing the death penalty is a good idea.

"the overwhelming evidence is that they are showing a marked shift of preference away from executions in favor of LWOP." Is there evidence to support that? (i.e., a drop in the number of capital prosecutions?) And if there is, does it take into account confounding factors (such as a possible reluctance to pursue capital charged during Baze pendency)?

Posted by: NewFedClerk | Jun 27, 2008 1:17:01 PM

The evidence from Ohio and North Carolina today is given here

Your earlier comment obviously failed to recognize my distinction between an informed public and joe public. When given the option of LWOP, studies have shown a very close and closing spread of opinion within joe public. The informed public are already there.

Posted by: peter | Jun 27, 2008 1:38:18 PM

"Prosecutors around Ohio, citing the ability to pursue harsh punishment without going through the complication and expense of a death penalty case are starting to take advantage of the 2005 law."
That's certainly not support for abolishing the death penalty -- but rather just a demonstration that's its current organization & never ending appeals process subjects prosecutors to difficult budget choices that they can now avoid. Not to mention that capital indictments in Ohio increased almost 12% from 2006 to 2007.

In North Carolina - “Under the old law, I think prosecutors were sometimes forced to try cases capitally in order to be able to get a life sentence, knowing that there was very little chance a jury would render a sentence of death.” He added that the new option allows for quick justice that saves money and still protects citizens.

Again, hardly a scathing rebuke of the death penalty.

And the problem with your "informed public" is aptly addressed by Bill's post. You only include those who share your views in defining "informed." I sincerely doubt that many of the jurors from Mr. Cooey's trial, informed under your definition, are now ardent abolitionists as a result of their new education. (Although I won't state that as face because I don't have the evidence to support it.)

Posted by: NewFedClerk | Jun 27, 2008 3:48:20 PM

I think your quotation that "there was very little chance a jury would render a sentence of death" is the big giveaway, don't you? Try as some prosecutors and others may, to hide the fact that their efforts to cause death is increasingly being thwarted by juries in the knowledge that practical penal provision exists to render execution unnecessary, many now accept or are beginning to accept that informed opinion is against their argument. The death penalty has survived as long as it has because the public has been deliberately disconnected from the process. Out of sight is out of mind. Baze, in the long run, will further help to bring the realities of the death penalty process, including costs, out into the open and into the public consciousness. The death penalty cannot withstand such scrutiny today.

Posted by: peter | Jun 27, 2008 5:28:42 PM


It is part of the genius of the abolitionist movement that it has had some success (limited to be sure) by simply raising costs beyond those that the less affluent jurisdictions can bear, and by mounting phony "He Was Innocent!" campaigns like the one that went on for years about Roger Keith Coleman. Eventually the Coleman claim was exposed as a hoax, but by that time the notion that we routinely execute blameless people had gained some traction.

In other words, what is happening is that the abolitionist movement is, to a slight degree, strangling the death penalty without ever having to convince either the electorate or the judiciary that it's unjust. Nice trick there.

Still, even with all that, the number of executions in the 10 year period 1995 to 2005 was the highest for any decade in the last fifty years. The claim that the death penalty is losing popular support because of the very recent falloff in executions merely exploits the de facto moratorium stemming from the pendency of Baze.

You might be interested in the Federalist Society blog debate on the death penalty, which addresses many of these issues. Just Google "federalist society death penalty" and you'll get to it. Kent Scheidegger and I were on the pro-death penalty side, and Natasha Minsker from the ACLU and Prof. David Dow from the University of Houston were on the abolitionist side.

Thank you for your participation here. You add a great deal.

Posted by: Bill Otis | Jun 27, 2008 5:52:58 PM

A cute spin :). No wonder you and George got on so well. NewFedClerk - beware the flattery.... the spider's web may look attractive from afar but it's purpose is to ensnare. I suggest you remain a free-thinker, and reflect on the increasing evidence of a broken system, and the unnecessary dangers of succumbing to a philosophy of retribution instead of addressing the causes and opportunities for crime. Economic cost is one factor, the human costs of such an exclusive philosophy are far greater.

Posted by: peter | Jun 28, 2008 4:19:55 AM


"A cute spin :)."

At this age, I try to be as cute as possible, but nothing works.

"No wonder you and George got on so well."

He's a class act, a true gentleman. But I hardly ever got to see him. My title makes me seems more important than I actually was. I was a long way down the totem pole.

"NewFedClerk - beware the flattery.... the spider's web may look attractive from afar but it's purpose is to ensnare. I suggest you remain a free-thinker..."

I have no doubt he'll remain a free thinker. He's a smart guy, seems to know the law and legal doctrines quite well, and argues forcefully but respectfully. My guess is that down the line he'll be making a zillion bucks while I'm in assisted living wondering why they didn't bring me my cup of warm milk.

Posted by: Bill Otis | Jun 28, 2008 9:12:41 AM

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