If the distance of the move is the only criteria, then there is no reason to every stop moving it.

There is no constitutional reason to ever stop moving it, just like there's no constitutional reason we couldn't employ every single US citizen in the postal service, or have 2.4 million people serving in the House of Representatives.

Just because there's no constitutional reason we couldn't slowly move the penalty for jaywalking to be death doesn't mean we're going to do that. The penalty for crimes will always roughly be what people think should be, because we elect the people who make the laws.

The 'unusual' restrictions serves two purposes: It makes sure we can't invent entirely new (and cruel) punishments, like chopping off hands or branding people, and it makes sure that politicians can't change punishments to be much much harsher very quickly...that, statistically, punishments for crimes should be 'somewhat' similar even between various jurisdictions. (At least, cruel punishments.)

The Supreme Court, however, has decided that it means certain crimes cannot be punished with the death penalty at all, because it doesn't like the death penalty.

The problem is saying "it's okay to lower the bar, as long as it's just one level" is that you can keep saying that. If child-rape is eligible for the death penalty, what about crimes "just one level" below that? How many times can we use that argument to lower the death-penalty bar?

There is no prohibition against that in the constitution. If states generally had the death penalty for child rape, and one started it for adult rape, there's no logical reason that shouldn't be allowed.

I know you think you're pointing out a slippery slope, but there's no absolute right in the constitution to not to be punished 'harshly' or however that would work. There's just a right that your punishment not be unusual, aka, absurdly out of line with normal punishments for that crime. (That is, if it is also cruel, but that almost any sufficiently strong punishment is 'cruel' in some sense.)

This does, indeed, allow that line to move, as the 'normal' punishment moves.

Which is a good thing. Consider spousal abuse or drunk driving, two things that were not considered very large crimes, or crimes at all, 90 years ago, but now are rather large ones. Our punishments now would be unusual then, but are not unusual now.

The court, in this case, decided the way it did because it doesn't like the death penalty, something I must agree with them on even while I disagree with the decision. The death penalty should not be used while we have this many people demonstrably wrongly-imprisoned, and states should be legally compelled to do DNA testing and whatnot when it hasn't been done, even if the person is already convicted. But that's a 'due process' problem, not a 'cruel and unusual punishment' problem.

it's hard to see how a crime that most other states punish as one 'level' below the death penalty, as close to the death penalty without actually being it, cannot be a death penalty crime.

The problem is saying "it's okay to lower the bar, as long as it's just one level" is that you can keep saying that. If child-rape is eligible for the death penalty, what about crimes "just one level" below that? How many times can we use that argument to lower the death-penalty bar?

The constitution forbids 'cruel and unusual punishments'. Not or, and. Now, I'll concede for the sake of argument that the death penalty is 'cruel', but unusual? No.

If you look at the difference between murder and child rape, you'll notice that, legally, there's not a good deal of difference in the punishment.(1) Child rape is literally the closest crime to murder in terms of punishment.

So while the court might be able to step in and say that the death penalty for jaywalking in one state, while no other state even has it as a felony, is 'unusual', it's hard to see how a crime that most other states punish as one 'level' below the death penalty, as close to the death penalty without actually being it, cannot be a death penalty crime.

It's like saying that fining someone $500 for jaywalking, instead of the $100 that a lot of places charge, is 'unusual'. Well, no. It's slightly outside the mean, but it's not some horrible unconstitutional thing. Fines for littering, as an actual example, vary widely, with some places having near-token fines of $25 or so, and other places having $1500 files.

Different places treat different crimes in different manners. There are sometimes reasons for the Supreme Court to look into these differences, for example the crack vs. cocaine inane sentencing disparity that's totally nonsensical unless it's for racist reasons, but 'one state decided to punish a heinous crime slightly more than other states do' is not a problem that needs solving.

1) We rank crimes and assign different punishments not because we want to punish people less, but because making the same punishment for all crimes would encourage people to do the worse. If the punishment for kidnapping or rape was the same as murder, we'd encourage all kidnappers and rapists to kill their victims. This is especially true of the death penalty, which obviously can't be multiplied, so we can't give them one death penalty for the kidnapping and another for the murder.

But just because something is stupid policy doesn't mean it should be forbidden.

What do Al Gore and raped children have in common ?

Answer

Well Karl, assume for the moment that there is no good precedent to use in this case. I would argue that the judgment as to whether or not a punishment was cruel and unusual is fundamentally subjective. In that case, a justice could either use his/her own opinion, or attempt to gauge how America as a whole feels about the matter.

You seem to believe that the former is better, while others believe the latter. I personally don't know which is better.

Michael,

I will simply ignore your purposeful misreading of my post, in large part because you concede my actual point at the end: "Kennedy is applying a manufactured test to determine how the 8th Amendment actually applies to this case. Unfortunately the 8th Amendment doesn't specify what is cruel and unusual".

************************************************

As to the italicized portion above, you are correct that there is no on point precedent that mandates the result. Michael is also correct that nothing in the Eighth Amendment mandates the result. My further point was that Kennedy's national consensus test does not mandate the result, either, as Justice Alito's dissent demonstrates. Indeed, faithful application of that ad hoc test would yield the opposite result: a consensus is evolving in the opposite direction. This is what I meant by writing that the majority opinion lacks logic and coherence.

A correction: I do not believe "the former" is better; as stated in the majority opinion "the latter" is the test that Kennedy is using. Except Kennedy's conclusion is empirically wrong. The nation as a whole does not agree with Kennedy's opinion, and public opinion polling shows a strong majority in favor of the death penalty for child rape.

I have no strong feelings on this case, other than that pure subjectivism and unprecedented ad hoc result-oriented tests that yield empirically wrong conclusions are not how legal questions should be decided.

"Even if you agree with their bottom line, do Justice Kennedy and the justices in Kennedy v. Louisiana have a clue about how offensive it is to write this line in rationalizing why a man who has savagely raped his eight-year-old step-daughter should not be executed by the humane process of lethal objection:

“Evolving standards of decency must embrace and express respect for the dignity of the person[.]”

And as for their “proportional” punishment argue, I think it’s silly on its face — read the almost unreadable (because it’s so excruciating) account of the rape [goto link] and ask yourself whether it is really “disproportionate” to administer lethal-objection execution to a man who committed this type of barbaric a sexual assault on a child.

But let’s give him that one for argument’s sake. The Eighth Amendment talks about punishment that is cruel. First, punishment does not become cruel just because it’s disproportionate. And second, are we really striving here for proportionality? If a crime is cruel — as it clearly was in this case — wouldn’t a proportionate punishment also have to be cruel, and thus in violation of the Eighth Amendment?"

Certainly it seems that most laws are written in such a way as to minimize dependencies on societal consensus.

Do you mind expanding on this, specifically the part about minimizing dependence on society?

Nothing that profound, just mean that most laws are written to be as clear as possible, and minimize the use of terms that may have a subjective interpretation.

On a different tack, I'm somewhat surprised that this ruling seems to have generated a lot of rightwing blogosphere outrage, while the Giles ruling did not.

Charles Austin: It is difficult for me to think of any crime more deserving of death than the rape of a child.

Why do you qualify rape of a child and not rape regardless of victim? One who rapes a senior citizen is higher in your moral books?

Anon 9.38: I think that we, as a society, like to think of legal interpretation as something that is absolute. Certainly it seems that most laws are written in such a way as to minimize dependencies on societal consensus.

Do you mind expanding on this, specifically the part about minimizing dependence on society?

Normally, we believe that the law is something that can be interpreted without resorting to any kind of opinion poll. For example, whether or not a given law is an abridgment of my right to free speech should not be decided based on what most people think.

That's not true. Take for instance obsenity laws.

Good example. Still, I think that we, as a society, like to think of legal interpretation as something that is absolute. Certainly it seems that most laws are written in such a way as to minimize dependencies on societal consensus.

One could probably argue, though, that any use of the legal term "reasonable person" is actually just a short-hand way of appealing to a societal consensus.

Cost of average rape trial: I don't know, a lot

Random non-sequiters attacking Clinton because you can't make a real argument: Priceless

Normally, we believe that the law is something that can be interpreted without resorting to any kind of opinion poll. For example, whether or not a given law is an abridgment of my right to free speech should not be decided based on what most people think.

That's not true. Take for instance obsenity laws. Those are generally predicated upon "the moral standards of the community" where said alleged obscenity occurs. In other words yes we do in fact apply "polls" in the law in certain cases. Now in some cases things are iron clad- the person is either dead or they are alive (shut up, schroedinger!). But when it comes to things like "obscenity" or "cruel" the terms are not even remotely concrete. Some consensus societal standard has to be developed.