Outside the Beltway

SCOTUS Bans Death Penalty for Child Rape

James Joyner
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The Supreme Court has ruled that raping a child is not sufficiently heinous a crime to warrant capital punishment.

The Supreme Court on Wednesday outlawed executions of people convicted of raping a child.

In a 5-4 vote, the court said the Louisiana law allowing the death penalty to be imposed in such cases violates the Constitution’s ban on cruel and unusual punishment.

“The death penalty is not a proportional punishment for the rape of a child,” Justice Anthony Kennedy wrote in his majority opinion. His four liberal colleagues joined him, while the four more conservative justices dissented.

The ruling isn’t surprising, in that it follows thirty-plus years of High Court rulings limiting the death penalty to premeditated murder and treason. That doesn’t, however, make it a good outcome. Surely, the elected representatives of the people are better judges of which crimes most merit society’s harshest punishment than nine judges cloistered away from that society.

“The harm that is caused to the victims and to society at large by the worst child rapists is grave,” Alito wrote. “It is the judgment of the Louisiana lawmakers and those in an increasing number of other states that these harms justify the death penalty.”

But Kennedy said the absence of any executions for rape and the small number of states that allow it demonstrate “there is a national consensus against capital punishment for the crime of child rape.”

No, it doesn’t. It may show nothing more than that most states have acceded to the dictates of the Supreme Court. For that matter, what about Federalism? Doesn’t Louisiana get to have different laws than California?

And the defendant here was a particularly loathsome individual guilty of the most heinous of crimes: raping his eight-year-old stepdaughter. It’s not at all clear to me why this is less worthy of execution than, say, shooting someone for stealing your drugs.

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44 responses to “SCOTUS Bans Death Penalty for Child Rape”

  1. Eneils Bailey Avatar
    Eneils Bailey

    But Kennedy said the absence of any executions for rape and the small number of states that allow it demonstrate “there is a national consensus against capital punishment for the crime of child rape.”

    There’s a man who reads the WaPo and NYT every day, but forgot where he left his copy of the US Constitution. He should get one and read it for the first time in his life.

  2. Michael Avatar
    Michael

    Surely, the elected representatives of the people are better judges of which crimes most merit society’s harshest punishment than nine judges cloistered away from that society.

    We are a nation of laws, not of men.

  3. Jeffrey W. Baker Avatar
    Jeffrey W. Baker

    Exactly right, Michael. The whole point of the Bill of Rights is to protect the people from abuses of government. It doesn’t matter that the local government intends to cruelly and unusually punish you. It still violates your rights.

  4. Tlaloc Avatar
    Tlaloc

    It’s not at all clear to me why this is less worthy of execution than, say, shooting someone for stealing your drugs.

    Because presumably this girl, while assaulted, is still alive.

    She has a chance to deal with the trauma and hopefully go on to live a full life. That’s not to trivialize the damage at all, most likely life is going to be very hard for her for a long time, but she has a chance to recover. Not so the dead drug dealer.

    We punish murder harder than other crimes because it cannot be fixed. And on a practical note if we punish murder and rape the same that gives rapists a strong incentive to commit both crimes since a dead body is less likely to ID you to the police.

  5. Michael Avatar
    Michael

    Because presumably this girl, while assaulted, is still alive.

    That, by the way, is not to say that it’s not as bad a crime.

    The thing though, that it’s an objective measure in determining something as important as whether to execute someone or not. Lawyers can argue the degree to which a crime traumatized a victim, but they can’t argue whether or not a victim is dead.

  6. Steve Plunk Avatar
    Steve Plunk

    My good friend Tlaloc makes a very good point about the appropriate punishment. I would agree with his assessment.

    But is it the Court’s job to make that judgment or is it the Court’s job to determine if such punishment violates the US constitution? What the norms are has little to do with what the constitution allows or forbids. Will this majority continue with decisions by sticking a moist finger in the wind?

    As Michael says we are a nation of laws not men yet we have five justices making law while discounting the legislative bodies who are constituted to make laws.

  7. yetanotherjohn Avatar
    yetanotherjohn

    Unfortunately, there are two ways to change this. One is the obvious of replacing one of the 5 judges with one who will decide cases based on the constitution and not their own hubris.

    The other would be to have legislatures annually pass capital punishment laws, knowing they would be knocked down. But at least it would knock the “national consensus” argument for a loop.

  8. Hal Avatar
    Hal

    For that matter, what about Federalism? Doesn’t Louisiana get to have different laws than California?

    Um, hello? The prohibition against “cruel and unusual punishment” is defined by the eighth amendment to the constitution and consequently, a constitutional issue.

    Now, you can argue about whether this is cruel or unusual punishment, but given the decision was based on this constitutional provision against just such issues, it’s pretty much an egregious error to think this is an issue of states rights.

    I know that y’all on the right seem to think everything is a state’s rights issue, but this particular ruling is crystal clear in this respect.

    Surely, the elected representatives of the people are better judges of which crimes most merit society’s harshest punishment than nine judges cloistered away from that society.

    I can’t see how. This seems to be precisely why there is a supreme court which is charged with this interpretation.

  9. Anon Avatar
    Anon

    I think it is important to recognize that there are two questions here. One is whether or not execution can be an appropriate punishment for child rape. The other is whether or not it is “cruel and unusual.”

    One could easily believe that it is not the right punishment, but neither is it cruel and unusual. That would leave it up to the states.

    Likewise, one could believe that it is cruel, and in fact should be cruel, and is also the correct punishment. This would make it unconstitutional, but it’s entirely consistent to then believe that the consitution should be amended.

  10. Hal Avatar
    Hal

    One could easily believe that it is not the right punishment, but neither is it cruel and unusual.

    Um, no. Not according to the system of logic known on this planet.

  11. charles austin Avatar
    charles austin

    Michael, are you working under the impression that the Supreme Court is now responsible for writing the laws we live by? Seroiusly, you want to be opposed to the death penalty, that ok. You want five SCOTUS justices to tell the legislative and executive branches and everyone else to go take a flying leap for no better reason than that they are opposed to the death penalty, well, that’s a problem. That’s called tyranny. But Hal seems ok with it, so you got that going for you.

    It is difficult for me to think of any crime more deserving of death than the rape of a child. Saying that it isn’t as bad because she has a chance to get over it is pathetic and shameful. Defining deviancy down, indeed.

  12. Anon Avatar
    Anon

    One could easily believe that it is not the right punishment, but neither is it cruel and unusual.

    Um, no. Not according to the system of logic known on this planet.

    So all inappropriate punishments are by definition cruel and unusual?

  13. Michael Avatar
    Michael

    Michael, are you working under the impression that the Supreme Court is now responsible for writing the laws we live by?

    The court didn’t write any laws, there made a judgment on punishment based on the law. That is, coincidentally, exactly what judges are supposed to do, make judgments. It’s not activism or legislating from the bench simply because you disagree with it.

    Seroiusly, you want to be opposed to the death penalty, that ok. You want five SCOTUS justices to tell the legislative and executive branches and everyone else to go take a flying leap for no better reason than that they are opposed to the death penalty, well, that’s a problem. That’s called tyranny.

    It just so happens that I am generally in favor of the death penalty, especially as it stands (reserved for premeditated murder). What I oppose is fuzzy subjective reasons for the death penalty, like “trauma and life-long suffering”. It’s bad enough that we have to determine the mindset of the accused, you want us to have to determine amount of trauma suffered by the victim too?

    No, if you’re going to kill somebody for a reason, you have to be able to objectively prove that reason was satisfied. For that very reason I agree with the criticism of the “national consensus” test made by the majority decision, we shouldn’t judge whether or not an execution is legal based on whether or not it is popular.

    It is difficult for me to think of any crime more deserving of death than the rape of a child. Saying that it isn’t as bad because she has a chance to get over it is pathetic and shameful. Defining deviancy down, indeed.

    I think I’d be happier if this guy were executed, personally. But in any case like this, it’s how it will be applied to the next guy that has me worried. Will causing “irrecoverable trauma” from any crime be enough to justify execution?

  14. Hal Avatar
    Hal

    Charles Austin, it’s rather interesting to think about what you actually think the supreme court is there for and how you would interpret article III of the constitution. The supreme court is not “writing the laws we live by” by any stretch of the imagination. The decision was that this law – not written by the courts – is unconstitutional. Full stop. End of story.

    It’s a rather comical attempt to frame this as the judiciary “writing laws”. Pray tell, where is the law they wrote in this decision?

  15. Hal Avatar
    Hal

    So all inappropriate punishments are by definition cruel and unusual?

    By definition, cruel and unusual punishment is inappropriate punishment. Conversely, not all inappropriate punishment is cruel and unusual. Oddly, the question before the court was whether the punishment was cruel and unusual, not whether it was inappropriate.

    You’re trying to split this into two questions results from the erroneous assumption that the question was whether the punishment was merely inappropriate.

    That’s a serious error in logic.

  16. Tlaloc Avatar
    Tlaloc

    But is it the Court’s job to make that judgment or is it the Court’s job to determine if such punishment violates the US constitution? What the norms are has little to do with what the constitution allows or forbids.

    I think that “cruel and unusual punishment” has a lot to do with norms. How can you know what is cruel or unusual without some standard of normative behavior to compare to?

    Now you might argue for a different standard of the norm than “what are states doing today?” That’s fine, you can make a decent argument for that.

  17. Anon Avatar
    Anon

    Hal, you appear to have misread what I said. I said:

    One could easily believe that it is not the right punishment, but neither is it cruel and unusual.

    You claimed that this was not logical, but then you go on to say:

    …not all inappropriate punishment is cruel and unusual.

    Isn’t this exactly what I said?

  18. Michael Avatar
    Michael

    I think that “cruel and unusual punishment” has a lot to do with norms. How can you know what is cruel or unusual without some standard of normative behavior to compare to?

    True, and that is essentially what the court did with their “national consensus” test. It’s not my ideal, but it’s closer to it than having to determine whether or not the victim suffered enough.

  19. Michael Avatar
    Michael

    I should clarify that. Even through the courts used a consensus test to determine whether or not the punishment was “cruel and unusual”, they were _not_ making any laws, rather they were trying to convert a rather nebulous requirement to a very specific decision, which is exactly what judges are tasked with doing.

  20. Karl Avatar
    Karl

    Even through the courts used a consensus test to determine whether or not the punishment was “cruel and unusual”, they were _not_ making any laws, rather they were trying to convert a rather nebulous requirement to a very specific decision, which is exactly what judges are tasked with doing.

    Well, no. Alito’s dissent makes clear there is no logic or coherence to the Court’s reasoning. And there are no precedents that command the result. So Kennedy’s rule made its first appearance in the very case in which he applied it. How can you apply law that does not exist? That is why the term “legislating from the bench” is in the vernacular. I would also note that it is wholly improper for a judge to make up a substantive rule that has retroactive effect in a criminal case. Just because the harmed parties are state legislators does not mean fair warning and process is not due.

    Yes, I know one can claim that Kennedy is “applying the 8th Amendment”. The problem is that he is not. Kennedy is applying a judicially manufactured test, and his distortion of that test is nonsensical and unprecedented.

  21. Anon Avatar
    Anon

    Michael, or, here is another way to state the same thing.

    Normally, we believe that the law is something that can be interpreted without resorting to any kind of opinion poll. For example, whether or not a given law is an abridgment of my right to free speech should not be decided based on what most people think. It should be decided on what is written and codified in our legal and judicial system.

    However, in this particular case, one could argue that the constitution is written in such a way that it actually requires an “opinion poll”. Thus, it is appropriate for the justices to attempt to find consensus. (Note that I’m not agreeing or disagreeing with this interpretation, just stating it.)

  22. Michael Avatar
    Michael

    Alito’s dissent makes clear [he believes that] there is no logic or coherence to the Court’s reasoning.

    Fixed that for you.

    So Kennedy’s rule made its first appearance in the very case in which he applied it. How can you apply law that does not exist?

    Most of those kinds of rules do make their first appearance in the case where they are applied. That’s not making a law, that’s setting a precedent, which the judges would do no matter how they ruled. The difference is that judges can ignore precedent they don’t agree with, but they can’t ignore laws they don’t agree with.

    I would also note that it is wholly improper for a judge to make up a substantive rule that has retroactive effect in a criminal case.

    Um, so they should make a rule that will help them make a proper judgment, but then refrain from using that rule to make a proper judgment on the case that prompted it? How does that make sense?

    Just because the harmed parties are state legislators does not mean fair warning and process is not due.

    Again, the rule is not a law, it’s advice to guide this and future judgments so that they best conform to the law, but they don’t actually change the law.

    Yes, I know one can claim that Kennedy is “applying the 8th Amendment”. The problem is that he is not. Kennedy is applying a judicially manufactured test, and his distortion of that test is nonsensical and unprecedented.

    Kennedy is applying a manufactured test to determine how the 8th Amendment actually applies to this case. Unfortunately the 8th Amendment doesn’t specify what is cruel and unusual, and what is not, so such a device is necessary to even attempt to apply the current laws to this case.

  23. Michael Avatar
    Michael

    However, in this particular case, one could argue that the constitution is written in such a way that it actually requires an “opinion poll”. Thus, it is appropriate for the justices to attempt to find consensus. (Note that I’m not agreeing or disagreeing with this interpretation, just stating it.)

    Yes, I agree with that. However the “opinion poll” isn’t whether or not this guy should be executed, it’s whether or not this kind of punishment would be considered “cruel and unusual” for this kind of crime.

    Again, it’s not my ideal, but it is how it is.

  24. Anon Avatar
    Anon

    Well Karl, assume for the moment that there is no good precedent to use in this case. I would argue that the judgment as to whether or not a punishment was cruel and unusual is fundamentally subjective. In that case, a justice could either use his/her own opinion, or attempt to gauge how America as a whole feels about the matter.

    You seem to believe that the former is better, while others believe the latter. I personally don’t know which is better.

    (There is a kind of third option, which is to say that the SC can’t decide this, and leave it up to the states. But the implication of this line of reasoning is that whether or not a punishment is “cruel and unusual” is not a federal matter, in which case it should not be in the constitution in the first place. This strikes me as a de facto removal of the eighth amendment, which seems like it would be a violation of separation of powers.)

  25. Michael Avatar
    Michael

    (There is a kind of third option, which is to say that the SC can’t decide this, and leave it up to the states. But the implication of this line of reasoning is that whether or not a punishment is “cruel and unusual” is not a federal matter, in which case it should not be in the constitution in the first place. This strikes me as a de facto removal of the eighth amendment, which seems like it would be a violation of separation of powers.)

    That doesn’t even give a way to answer the question, it just gives the choice between the previous two options to a different set of judges.

  26. Anon Avatar
    Anon

    That doesn’t even give a way to answer the question, it just gives the choice between the previous two options to a different set of judges.

    Yes, but it seems to be what those who want this to be decided by the states are arguing for. I’m not a lawyer by any means, but it seems to me that this is not an option the SC can choose. In other words, it has to say yes or no. Now, if it says yes, the states can still decide whether or not it is the appropriate punishment, but they can’t decide whether or not it is “cruel and unusual”.

  27. Hal Avatar
    Hal

    but they can’t decide whether or not it is “cruel and unusual”.

    Your logic is circular. The supreme court is – by definition of Article III of the constitution – precisely the body of our government which is given the authority to decide and charged with the responsibility of resolving precisely this question.

    This is not a controversial position.

  28. Anon Avatar
    Anon

    but they can’t decide whether or not it is “cruel and unusual”.

    Your logic is circular.

    I’m not the one saying this. I just stated that one could say this, and then went on to state why I didn’t think it was a sound position.

    There is a kind of third option, which is to say that the SC can’t decide this

    I suppose it would have been clearer if I had written, “which would be to say”.

  29. Hal Avatar
    Hal

    I suppose it would have been clearer if I had written, “which would be to say”.

    Apologies.

  30. Tlaloc Avatar
    Tlaloc

    Normally, we believe that the law is something that can be interpreted without resorting to any kind of opinion poll. For example, whether or not a given law is an abridgment of my right to free speech should not be decided based on what most people think.

    That’s not true. Take for instance obsenity laws. Those are generally predicated upon “the moral standards of the community” where said alleged obscenity occurs. In other words yes we do in fact apply “polls” in the law in certain cases. Now in some cases things are iron clad- the person is either dead or they are alive (shut up, schroedinger!). But when it comes to things like “obscenity” or “cruel” the terms are not even remotely concrete. Some consensus societal standard has to be developed.

  31. charles austin Avatar
    charles austin

    Kind of like the word “is” for instance.

  32. Tlaloc Avatar
    Tlaloc

    Salary of a supreme court justice: $208,100

    Cost of average rape trial: I don’t know, a lot

    Random non-sequiters attacking Clinton because you can’t make a real argument: Priceless

  33. Anon Avatar
    Anon

    Normally, we believe that the law is something that can be interpreted without resorting to any kind of opinion poll. For example, whether or not a given law is an abridgment of my right to free speech should not be decided based on what most people think.

    That’s not true. Take for instance obsenity laws.

    Good example. Still, I think that we, as a society, like to think of legal interpretation as something that is absolute. Certainly it seems that most laws are written in such a way as to minimize dependencies on societal consensus.

    One could probably argue, though, that any use of the legal term “reasonable person” is actually just a short-hand way of appealing to a societal consensus.

  34. Ari Herzog Avatar
    Ari Herzog

    Charles Austin: It is difficult for me to think of any crime more deserving of death than the rape of a child.

    Why do you qualify rape of a child and not rape regardless of victim? One who rapes a senior citizen is higher in your moral books?

    Anon 9.38: I think that we, as a society, like to think of legal interpretation as something that is absolute. Certainly it seems that most laws are written in such a way as to minimize dependencies on societal consensus.

    Do you mind expanding on this, specifically the part about minimizing dependence on society?

  35. Anon Avatar
    Anon

    Certainly it seems that most laws are written in such a way as to minimize dependencies on societal consensus.

    Do you mind expanding on this, specifically the part about minimizing dependence on society?

    Nothing that profound, just mean that most laws are written to be as clear as possible, and minimize the use of terms that may have a subjective interpretation.

    On a different tack, I’m somewhat surprised that this ruling seems to have generated a lot of rightwing blogosphere outrage, while the Giles ruling did not.

  36. davod Avatar
    davod

    Andy McCarthy says it better than I could:.

    “Even if you agree with their bottom line, do Justice Kennedy and the justices in Kennedy v. Louisiana have a clue about how offensive it is to write this line in rationalizing why a man who has savagely raped his eight-year-old step-daughter should not be executed by the humane process of lethal objection:

    “Evolving standards of decency must embrace and express respect for the dignity of the person[.]”

    And as for their “proportional” punishment argue, I think it’s silly on its face — read the almost unreadable (because it’s so excruciating) account of the rape [goto link] and ask yourself whether it is really “disproportionate” to administer lethal-objection execution to a man who committed this type of barbaric a sexual assault on a child.

    But let’s give him that one for argument’s sake. The Eighth Amendment talks about punishment that is cruel. First, punishment does not become cruel just because it’s disproportionate. And second, are we really striving here for proportionality? If a crime is cruel — as it clearly was in this case — wouldn’t a proportionate punishment also have to be cruel, and thus in violation of the Eighth Amendment?”

  37. Karl Avatar
    Karl

    Well Karl, assume for the moment that there is no good precedent to use in this case. I would argue that the judgment as to whether or not a punishment was cruel and unusual is fundamentally subjective. In that case, a justice could either use his/her own opinion, or attempt to gauge how America as a whole feels about the matter.

    You seem to believe that the former is better, while others believe the latter. I personally don’t know which is better.

    Michael,

    I will simply ignore your purposeful misreading of my post, in large part because you concede my actual point at the end: “Kennedy is applying a manufactured test to determine how the 8th Amendment actually applies to this case. Unfortunately the 8th Amendment doesn’t specify what is cruel and unusual”.

    ************************************************

    As to the italicized portion above, you are correct that there is no on point precedent that mandates the result. Michael is also correct that nothing in the Eighth Amendment mandates the result. My further point was that Kennedy’s national consensus test does not mandate the result, either, as Justice Alito’s dissent demonstrates. Indeed, faithful application of that ad hoc test would yield the opposite result: a consensus is evolving in the opposite direction. This is what I meant by writing that the majority opinion lacks logic and coherence.

    A correction: I do not believe “the former” is better; as stated in the majority opinion “the latter” is the test that Kennedy is using. Except Kennedy’s conclusion is empirically wrong. The nation as a whole does not agree with Kennedy’s opinion, and public opinion polling shows a strong majority in favor of the death penalty for child rape.

    I have no strong feelings on this case, other than that pure subjectivism and unprecedented ad hoc result-oriented tests that yield empirically wrong conclusions are not how legal questions should be decided.

  38. Michael Avatar
    Michael

    Karl,
    That was Anon responding to you post, not me.

  39. Neo Avatar
    Neo

    This begs the question ..

    What do Al Gore and raped children have in common ?

    Answer

  40. DavidTC Avatar
    DavidTC

    I am another person who thinks that a) the death penalty should be reserved for murder and treason(1), yet b) don’t quite understand how it can be unconstitutional.

    The constitution forbids ‘cruel and unusual punishments’. Not or, and. Now, I’ll concede for the sake of argument that the death penalty is ‘cruel’, but unusual? No.

    If you look at the difference between murder and child rape, you’ll notice that, legally, there’s not a good deal of difference in the punishment.(1) Child rape is literally the closest crime to murder in terms of punishment.

    So while the court might be able to step in and say that the death penalty for jaywalking in one state, while no other state even has it as a felony, is ‘unusual’, it’s hard to see how a crime that most other states punish as one ‘level’ below the death penalty, as close to the death penalty without actually being it, cannot be a death penalty crime.

    It’s like saying that fining someone $500 for jaywalking, instead of the $100 that a lot of places charge, is ‘unusual’. Well, no. It’s slightly outside the mean, but it’s not some horrible unconstitutional thing. Fines for littering, as an actual example, vary widely, with some places having near-token fines of $25 or so, and other places having $1500 files.

    Different places treat different crimes in different manners. There are sometimes reasons for the Supreme Court to look into these differences, for example the crack vs. cocaine inane sentencing disparity that’s totally nonsensical unless it’s for racist reasons, but ‘one state decided to punish a heinous crime slightly more than other states do’ is not a problem that needs solving.

    1) We rank crimes and assign different punishments not because we want to punish people less, but because making the same punishment for all crimes would encourage people to do the worse. If the punishment for kidnapping or rape was the same as murder, we’d encourage all kidnappers and rapists to kill their victims. This is especially true of the death penalty, which obviously can’t be multiplied, so we can’t give them one death penalty for the kidnapping and another for the murder.

    But just because something is stupid policy doesn’t mean it should be forbidden.

  41. Michael Avatar
    Michael

    it’s hard to see how a crime that most other states punish as one ‘level’ below the death penalty, as close to the death penalty without actually being it, cannot be a death penalty crime.

    The problem is saying “it’s okay to lower the bar, as long as it’s just one level” is that you can keep saying that. If child-rape is eligible for the death penalty, what about crimes “just one level” below that? How many times can we use that argument to lower the death-penalty bar?

  42. DavidTC Avatar
    DavidTC

    The problem is saying “it’s okay to lower the bar, as long as it’s just one level” is that you can keep saying that. If child-rape is eligible for the death penalty, what about crimes “just one level” below that? How many times can we use that argument to lower the death-penalty bar?

    There is no prohibition against that in the constitution. If states generally had the death penalty for child rape, and one started it for adult rape, there’s no logical reason that shouldn’t be allowed.

    I know you think you’re pointing out a slippery slope, but there’s no absolute right in the constitution to not to be punished ‘harshly’ or however that would work. There’s just a right that your punishment not be unusual, aka, absurdly out of line with normal punishments for that crime. (That is, if it is also cruel, but that almost any sufficiently strong punishment is ‘cruel’ in some sense.)

    This does, indeed, allow that line to move, as the ‘normal’ punishment moves.

    Which is a good thing. Consider spousal abuse or drunk driving, two things that were not considered very large crimes, or crimes at all, 90 years ago, but now are rather large ones. Our punishments now would be unusual then, but are not unusual now.

    The court, in this case, decided the way it did because it doesn’t like the death penalty, something I must agree with them on even while I disagree with the decision. The death penalty should not be used while we have this many people demonstrably wrongly-imprisoned, and states should be legally compelled to do DNA testing and whatnot when it hasn’t been done, even if the person is already convicted. But that’s a ‘due process’ problem, not a ‘cruel and unusual punishment’ problem.

  43. Michael Avatar
    Michael

    I wasn’t trying to say that moving the line was the slippery slope, just that the reasoning of “It’s okay to move it just a little” is a slippery slope. If the distance of the move is the only criteria, then there is no reason to every stop moving it.

  44. DavidTC Avatar
    DavidTC

    If the distance of the move is the only criteria, then there is no reason to every stop moving it.

    There is no constitutional reason to ever stop moving it, just like there’s no constitutional reason we couldn’t employ every single US citizen in the postal service, or have 2.4 million people serving in the House of Representatives.

    Just because there’s no constitutional reason we couldn’t slowly move the penalty for jaywalking to be death doesn’t mean we’re going to do that. The penalty for crimes will always roughly be what people think should be, because we elect the people who make the laws.

    The ‘unusual’ restrictions serves two purposes: It makes sure we can’t invent entirely new (and cruel) punishments, like chopping off hands or branding people, and it makes sure that politicians can’t change punishments to be much much harsher very quickly…that, statistically, punishments for crimes should be ‘somewhat’ similar even between various jurisdictions. (At least, cruel punishments.)

    The Supreme Court, however, has decided that it means certain crimes cannot be punished with the death penalty at all, because it doesn’t like the death penalty.

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