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Judicial Activists Strike Again

6.27.08 @ 12:01AM

HANG 'EM HIGH....AT THE STATE LEVEL
Re: William Tucker's Death Should be Reserved for Killers:

I agree with Mr. Tucker. As they used to say in all those old Westerns: lethal injection's too good fer 'em. Rather, they should be placed in the general prison population with no hope of solitary confinement. Then cry me a river.

Just to show I'm not emotional, and all, Mr. Tucker gives a lot of practical reasons why child rape shouldn't be a capital crime, but I didn't see much on whether he thought the Supreme Court was correct that it was unconstitutional. Certainly four justices agree with me that Louisiana was perfectly within their constitutional powers to pass such a law. Had Ronald Reagan made a better pick than Justice Kennedy, Louisiana could be free to try it out. But instead, all convicted child rapists everywhere will get to be squirreled away from danger, content in the knowledge that somewhere out there is a child who he continues to torture just by being alive. I fail to see the deterrence factor in that.
-- Andrew J. Macfadyen, M.D.
Omaha, Nebraska

I agree with William Tucker that putting child rapists to death is a mistaken and counter-productive law. I am convinced it would have the perverse effect of incentivizing murder for a rapist after having ravished an innocent child. After all, as a matter of percentages, a child rapist has increased chances for getting away with the crime is he leaves no witnesses behind. But, as they say, that is a perfectly good answer to another question.

The issue before us is the difference between policy and the Constitution. The Supreme Court is supposed to rule on matters of law and their congruence with our founding document. A law may be bad policy; but between good policy and bad is not for the Court to decide. The Court in this case would have been on more solid ground if it confined itself to the death penalty for child rapists and the eighth amendment.

While the immediate result may be ultimately good for the community, the long term concern is that the Court is turning itself into an unelected super legislature with the power to overturn any aspect of self-government by a free people. All who care about Federalism and the separation of powers need to weigh this matter with care.
-- Mike Dooley

William Tucker missed the point in the SCOTUS ruling to over-turn the Louisiana death penalty law for rape. This was another example of judicial moralizing at the expense of the states rights. I do agree in the abstract that the death penalty may be counterproductive when applied to rape; however, the legislators of Louisiana were compelled by the heinousness of the crime. Raping a child is as bad as murder in their eyes and should be punished as such. Whether the death penalty works in deterring crime is a matter for state attorneys and lawmakers and not the Federal Judiciary. Five members of the courts believed otherwise. Writing for the Majority, Justice Kennedy wrote that the punishment was disproportionate to the crime. That is, the majority didn't find a legal problem with the law from a technical point of view, but they did agree that raping a child isn't as heinous as say murdering an innocent bystander during a robbery. The courts in short rendered a moral opinion, which they substituted for the Louisiana Law. Practical moral philosophy is accomplished in the legislators of our state houses and Congress and not in the courts. The death penalty as practiced by most states (Letha Injection) is quite "humane," which renders the 8th Amendment prohibition against cruel and unusual punishment non-applicable.

Personally, I'm against the death penalty. Yet, it is not up to me or the courts to decide whether the death penalty is immoral in the State of Louisiana. In recent years our courts have acted more like Plato's Philosopher Kings than Learned Hand. Justice Scalia was right when he referred to the courts as our "Master in black robes".
-- JP
Indiana

William Tucker writes a nice argument for debate in the Louisiana state government although I am not convinced that child rapists are affected much by rational thought. It is amazing that he didn't write this article when the debate was actually going on. I can certainly live with life sentences with no chance of parole for this crime but I am worried that a very liberal Supreme Court can and will find this unconstitutional as well. The idea of letting nine oligarchs decide this is the problem with the Supreme Court's ruling. I am sure that one could find all kinds of stupidity in state laws but the corrective is not using the Supreme Court to eliminate bad laws based on goofy constitutional reasoning. This creates a problem when five out of nine do something stupid (and they are very capable), there is no easy corrective. When we accept that the fact that the Supreme Court is the final arbiter of all aspects of our government (federal, state and local) we are no longer living in a representative republic but in an elitist oligarchy. No thanks!
-- Clifton Briner

Although I am not sure I agree with it, there is some merit to William Tucker's argument that the penalty for child rape should be kept lower than the penalty for murder. This is something that should be hashed out in our legislatures, not in our courts.

I would ask Tucker if he believes that, in those states that have eliminated the death penalty, the maximum penalty for child rape should be something less than life without possibility of parole, for the same reasons he gives in the fourth paragraph of his article.
-- Glen Hoffing
Camden, New Jersey

Nice argument, but that's the kind of policy that LEGISLATURES discuss. The SCOTUS was limited to deciding if it was "cruel or unusual" under the Constitution. You've fallen prey to the liberal mindset: "Tyranny is OK if I get what I want."
-- Matthew Eckel, J.D.

I agree in the main with Mr. Tucker's conclusion that the death penalty should be reserved for murder. (In the main, because what about treason during war?)

However, Tucker sidestepped the real question: what gives the Supreme Court the right to overturn a Louisiana statute regarding punishment of offenders? Presumably this statute was passed by the legislature of Louisiana, a duly elected body representative of the people of Louisiana.

Where in the Constitution is the Supreme Court given the right to interfere in domestic matters involving crime and punishment? Cruel and unusual punishment (8th Amendment) is a limitation on the Federal government, not on the States. And even if it were a limitation on the States, it's primarily a limitation on the process of punishment (torture, drawing & quartering, etc.) prior to execution, not on the sentence itself.

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