The Discerning Texan

All that is necessary for evil to triumph, is for good men to do nothing.
-- Edmund Burke
Wednesday, July 02, 2008

Fact Checked Again: Kennedy's Cited Federal "Consensus" against Capital Punishment for Rape is a Lie

You would think that with all those Ivy League law clerks, even the self-important Justice Kennedy might hold off before actually placing factual errors as a basis for an opinion that makes a joke of our Constitution... but if you did think that, you would be wrong.

Andrew McCarthy--who has been involved in some pretty important cases himself--finds that yet another activist opinion from these yahoos is factually inaccurate. From which one can draw the conclusion: not only have we and our system of Government been collectively raped by five judicial dictators; the basis these tyrants used to justify their rape was pure invention. Highlights of the whole below; emphasis is mine:
When our rulers on the Supreme Court invalidated the State of Louisiana's death penalty for child rapists — in the case appropriately titled Kennedy v. Louisiana, decided June 25 — Justice Kennedy and the Court's liberal bloc insisted that the Eighth Amendment does not mean what it meant when it was adopted. Rather, the question of what is "cruel and unusual" punishment is answered by "the evolving standards of decency that mark the progress of a maturing society."


And then there’s the ineffable disassociation with reality: Ivory-tower legal elites chattering about how we’ve “evolved” because they’ve chosen to spare from a constitutional, conspicuously humane, democratically determined capital sentence a grown man whose sexual assault of his eight-year-old step-daughter was so savage a forensic expert described the resulting wounds (which required emergency surgery to save the child’s life) as the worst he had ever witnessed.

But most nauseating is the smarm with which our self-determination is gradually eroded. The evolving standards blah, blah, blah is not a legal test. It is for five justices exactly what those justices gave the child-rapist: a license to mutilate. How insulting to our collective intelligence that we’re all supposed to go along as if we don’t get that. Don’t you feel good about yourself? You’re evolving — or, better, being evolved.


The evolving standards Justice Kennedy purported to find stemmed from what he took to be a national “consensus” against capital punishment for child rape. The furious public outcry after the ruling was a pretty good sign that something was amiss in the majority’s survey. Nevertheless, the Court observed that of the 36 states that provide for capital punishment, six make it available for child rape — which Kennedy & Co. somehow take to mean that about 83 percent of death-penalty states, and 88 percent of the nation at large, must be opposed to the execution of such heinous criminals.


Turning to the national government, the Kennedy majority pronounced that it, too, had evolved toward consensus:
As for federal law, Congress in the Federal Death Penalty Act of 1994 expanded the number of federal crimes for which the death penalty is a permissible sentence, including certain nonhomicide offenses; but it did not do the same for child rape or abuse…. [A]n offender is death eligible only when the sexual abuse or exploitation results in the victim's death.
Well, not exactly.

Justice Kennedy was wrong. As reported by a military-justice blog (in a contribution by Dwight Sullivan, a civilian-defense counsel who handles appeals in the Air Force system), it turns out that less than two years ago, in 2006, the American people’s national legislators enacted a law, applicable throughout the United States, that expressly provides for capital punishment in rape cases.

Specifically, as part of the National Defense Reauthorization Act, Congress added child rape to the crimes for which the Uniform Code of Military Justice prescribes death as a potential sentence. The victim needn’t be killed for the accused to be “death eligible.” Moreover, as the New York Times reports, last September (that would be ten months ago), President Bush issued an Executive Order inscribing the death-for-rape provisions in the 2008 edition of the Manual for Courts-Martial.

In point of fact, if there actually was a national consensus, it trended toward discouraging child rape by making execution an available sanction. ...
Guess Kennedy, the other Kangaroos, and the law clerks missed that one. Read the whole thing.
DiscerningTexan, 7/02/2008 06:12:00 PM |