Do They WANT Vigilantism

Today's Kennedy v. Louisiana Supreme Court ruling (PDF file) is another 5-4 "victory" for the politically Left-leaning members of the Court. Beginning at page seven in the decision is a graphic description of what the scrote did to his eight year old stepdaughter. That description begins:

Petitioner's crime was one that cannot be recounted in these pages in a way sufficient to capture in full the hurt and horror inflicted on his victim or to convey the revulsion society, and the jury that represents it, sought to express by sentencing petitioner to death.

He's right. By the end of it I was wondering why the sack of excrement was still breathing. This is Louisiana, right? Don't they have a lot of swamp and alligators down there?

I have a nine year old granddaughter. If some subhuman did this to her, I'd sit in a prison cell for the rest of my life, or take the needle content in knowing that he'd never do it to anyone else - ever, at the same time anguished that I hadn't prevented it in the first place. I've made this point before.

Justice Alito wrote the dissent. It begins on page 42:

The Court today holds that the Eighth Amendment categorically prohibits the imposition of the death penalty for the crime of raping a child. This is so, according to the Court, no matter how young the child, no matter how many times the child is raped, no matter how many children the perpetrator rapes, no matter how sadistic the crime, no matter how much physical or psychological trauma is inflicted, and no matter how heinous the perpetrator's prior criminal record may be. The Court provides two reasons for this sweeping conclusion: First, the Court claims to have identified "a national consensus" that the death penalty is never acceptable for the rape of a child; second, the Court concludes, based on its "independent judgment," that imposing the death penalty for child rape is inconsistent with " 'the evolving standards of decency that mark the progress of a maturing society.' " Because neither of these justifications is sound, I respectfully dissent.

He then goes into a heavily annotated and deeply legal discussion of the existing precedents, but to my mind this is the key graph of the dissent:

The Court is willing to block the potential emergence of a national consensus in favor of permitting the death penalty for child rape because, in the end, what matters is the Court's "own judgment" regarding "the acceptability of the death penalty." Although the Court has much to say on this issue, most of the Court's discussion is not pertinent to the Eighth Amendment question at hand. And once all of the Court's irrelevant arguments are put aside, it is apparent that the Court has provided no coherent explanation for today's decision.

(My emphasis.) In essence, Alito just illustrated that the court did what Alex Kozinski called constitutionalizing their personal preferences - "build(ing) magnificent legal edifices on elliptical constitutional phrases - or even the white spaces between lines of constitutional text."

Today on the Hugh Hewitt radio program Hugh had "the Smart Guys" on again - Law professor (and now Dean of the new U.C. Irvine School of Law) Erwin Chemerinsky and Chapman University Dean John Eastman. Chemerinsky was ecstatic over the "evolving standards of decency" language of the decision. I'm trying to get a transcript of that portion of the show, because it is a textbook example of "Living Document" interpretation of the Constitution, and Alito points it out here. Alito makes one more excellent point:

The Court's final — and, it appears, principal — justification for its holding is that murder, the only crime for which defendants have been executed since this Court's 1976 death penalty decisions, is unique in its moral depravity and in the severity of the injury that it inflicts on the victim and the public. But the Court makes little attempt to defend these conclusions.

With respect to the question of moral depravity, is it really true that every person who is convicted of capital murder and sentenced to death is more morally depraved than every child rapist? Consider the following two cases. In the first, a defendant robs a convenience store and watches as his accomplice shoots the store owner. The defendant acts recklessly, but was not the triggerman and did not intend the killing.

In the second case, a previously convicted child rapist kidnaps, repeatedly rapes, and tortures multiple child victims. Is it clear that the first defendant is more morally depraved than the second?

One wonders how Justice Alito managed to refrain from accusing the Court's majority in this case of moral depravity of their own.

As an aside, my boss has his own idea as to how child-rapists should be punished.