"The death penalty is not a proportional punishment for the rape of a child"

[Tex]

Originally Posted by Cali Coug

I am still waiting for some explanation as to this statement, Tex. The fact that 6 states decide to do something makes it a "judgment call" that the Supreme Court can't overturn? What a bizarre conclusion you have reached. What do you think the Court should review in determining if a punishment is "unusual?" Should it not consider that 44 states don't see fit to extend the death penalty to rape?

I don't really care if its 6-44, 44-6, or 25-25. I only pointed out the 6 states to illustrate that there is a divided view on this issue, and it's not up to Anthony Kennedy to determine what "national consensus" is.

Originally Posted by Cali Coug

And you still haven't said if you are denying that you said you would prefer a conservative result to a strict constructionist result. Just print your answer here and we can let people judge of their own accord without your editorializing.

Scalia has said multiple times that occasionally his jurisprudence forces him to a decision that he personally disagrees with. I find that to be an honest and correct approach.

There is nothing dishonest about taking personal moral pleasure in a decision that I also find to be legally sound.

PS. Don't hijack my thread on this unrelated issue. You want to talk about this, go start your own.

[Cali Coug]

Originally Posted by Tex

I don't really care if its 6-44, 44-6, or 25-25. I only pointed out the 6 states to illustrate that there is a divided view on this issue, and it's not up to Anthony Kennedy to determine what "national consensus" is.

You are using the term "divided" pretty loosely, there. Under your use of the phrase, I would assume we are "divided" if it is 49-1, or 50-0 but with a solid minority in one state who thinks rapists should be eligible for execution. Again, why shouldn't the Court look to the number of states who think the death penalty shouldn't be extended to rapists? The standard is CRUEL AND UNUSUAL. What is "unusual" and "cruel" if not a changing metric that depends on the national mood?

Scalia has said multiple times that occasionally his jurisprudence forces him to a decision that he personally disagrees with. I find that to be an honest and correct approach.

There is nothing dishonest about taking personal moral pleasure in a decision that I also find to be legally sound.

Another non-answer. This is a question where the response can be as simple as "yes" or "no." Any response that doesn't at some point include "yes" or "no" (or their equivalent) is going to be non-responsive.

And Scalia has said that multiple times, but his actions have demonstrated to the contrary multiple times.

[Cali Coug]

Originally Posted by il Padrino Ute

No, I feel no reason to justify my position to you, as you are a bleeding heart liberal and I'm not and nothing either of us could say will change the other's point of view.

Just accept that and move on.

Fine- then don't respond to my posts and save us the time. I am willing to talk about the issue. You don't appear to be.

[il Padrino Ute]

Originally Posted by Cali Coug

Fine- then don't respond to my posts and save us the time. I am willing to talk about the issue. You don't appear to be.

You're willing to claim that you're right and I'm wrong. That isn't being willing to talk about it.

I stated my opinion and you didn't like it. Had you just commented that you disagree with my opinion, the discussion would have been over, but you decided to go a step further and say that people who are for the death penalty for a child rapist are all about vengeance. You decided to make it an "I'm right and you're wrong" discussion.

[UtahDan]

The problem with this discussion IMO is that the 8th Amendment is maybe the worst area you could pick to have an originalist vs. activist debate over. This because 8th Amendment jurisprudence rests largely on looking at what the states are doing to determine what the national consensus is as to cruel and unusual. This is actually one area where the SCOTUS should have its finger to the wind so to speak.

This is not like 5th amendment jurisprudence in, for example, Roe or Lawrence where brand new rights that no one knew about for 200 years sprang fully formed from the ether (or what they liked to call the penumbra). In those cases the jurists were consciously saying "yes, we know that the founders had a completely different idea about what this piece of the constitution says, but thats okay because we think that it says what ever we say it says, not necessarily what they meant."

I actually think the Supremes got this one right, but if they didn't I don't think the best attack is on originalist grounds.

[Tex]

Originally Posted by UtahDan

The problem with this discussion IMO is that the 8th Amendment is maybe the worst area you could pick to have an originalist vs. activist debate over. ...

I actually think the Supremes got this one right, but if they didn't I don't think the best attack is on originalist grounds.

Who is making an originalist argument, Dan? I haven't read Alito's opinion in full, but the scan I did of it did not seem to me an originalist argument.

[Cali Coug]

Originally Posted by il Padrino Ute

You're willing to claim that you're right and I'm wrong. That isn't being willing to talk about it.

I stated my opinion and you didn't like it. Had you just commented that you disagree with my opinion, the discussion would have been over, but you decided to go a step further and say that people who are for the death penalty for a child rapist are all about vengeance. You decided to make it an "I'm right and you're wrong" discussion.

I said that YOU were all about vengeance, not that everyone who supports the death penalty for rape is about vengeance, and I think I gave a pretty compelling piece of evidence in support of my statement (which was your statement).

[il Padrino Ute]

Originally Posted by Cali Coug

I said that YOU were all about vengeance, not that everyone who supports the death penalty for rape is about vengeance, and I think I gave a pretty compelling piece of evidence in support of my statement (which was your statement).

I read your post and you're correct. You said that I was all about vengeance. It's apparent that what you see as vengeance is what I see as justice.

[Tex]

Originally Posted by il Padrino Ute

I read your post and you're correct. You said that I was all about vengeance. It's apparent that what you see as vengeance is what I see as justice.

The real question here is, did this guy ever buzz a cyclist? Then we'd see the long knives really come out ...

[ERCougar]

Originally Posted by Cali Coug

It depends on what purpose you believe the death penalty serves. If you believe the death penalty is a punishment enacted out of vengeance by a society so repulsed by an offender that it can only be satisfied by watching the offender die, then maybe it is appropriate. That seems like a very bad basis for the death penalty, though.

If you view it as a deterrent for crime, then is there any evidence that sex offenders are deterred by the death penalty? I doubt it. In fact, given the almost universal presence of mental addiction of sex offenders to sex (particularly pedophilia), I would bet that is one of the groups of criminals least likely to be influenced by the possibility of the death penalty.

So what logical reason is there to make it available for this kind of crime? Nobody disputes the vulgar, heinous, disgusting and evil nature of sex crimes, particularly where a child is involved. I do think we may be succumbing to a dark inner desire to watch bad people suffer and die (which itself is perverse) when we ask for sex offenders to be executed (and that dark inner desire is frequently expressed in the form of "I don't even care how he is killed- make it painful). It seems to me that we can and ought to be better than that.

A rare occasion where I completely agree with Cali. The death penalty satisfies our basest impulses.