Wednesday, June 25, 2008

SCOTUS Watch (Death Penalty)

Nothing so far on the Heller case.

One interesting case out is a death penalty case. First off, I'd to state that I am against the death penalty, but at the same time do not consider it cruel and unusual punishment. I'm against it on different grounds. I do not want to see an innocent person executed, and I have concerns about some DA's being in the mold of Mike Nifong and use the always high profile death penalty cases for political purposes and push for convictions despite the evidence not being there. Keep in mind that the Duke LaCrosse players had access to one thing that not everybody has access to - top level attorneys. That is my opposition to the death penalty.

SCOTUS overturned the death penalty in matters of child rape on 8th Amendment grounds. I do disagree with the decision and do not consider it cruel and unusual punishment for child molestors as it is historically one of the major felonies that brought the death penalty as a punishment. In the old days, almost all felonies were death penalty cases, and that went too far the other way. 1800's Britain had a death penalty case for stealing a loaf of bread. The punishment didn't fit the crime.

Much of the anti death penalty push on the courts comes from the legacies of Justices Brennan and Marshall who thought the death penalty was unconstitutional in all cases. Literally. Now there a major precident by the Burger Court (although Burger himself backed it) SCOTUS for considering the death penalty unconstitutional completely (which is why Charles Manson is still alive), and then overturning it - but only in cases of murder (death penalty for rape was renedered unconstitutional by the Burger Court). Rehnquist and Roberts courts are for it in limited cases, and this continues down that road with the upholding of the lethal injection in Kentucky, and now this decision the other way.

I need to read the decision fully, and I can see an argument made for it, but what bothers me is the judicial code changing of cruel and unusual punishment to refer to the penalty itself (unless it really is an unusual punishment - such as the death penalty for "honor" crimes like in Middle East) and not the method of the penalty. Cruel and Unusual punishment would be the burning at the stake, hung, drawn, and quartered, other torture like the rack, necklacing, lynch mobs, etc etc. Mostly Cut and dry cases with heavy suffering. A good case can be made for the still used gas chamber being disallowed on those grounds as it takes a long time for the convicted to die, and most states eliminated it.

Does the punishment fit the crime? It is "cruel and unusual" for a child molester (victim under 12) to get executed? I don't believe so, and it was not uncommon for rapists in general to be executed up until the 1960s. It was considered a capital crime along with murder, treason, and things like that. Certainly not "cruel and unusual" in the sense that the average person then or now would think of as cruel and unusual." In these cases, I'm more concerned about innocents being executed than the punishment itself.

I'll read this decision later. I'm still waiting for the DC gun case.

No comments: