So writes Justice Kennedy in Kennedy v. Louisiana. Searching for "evolving standards of decency," Kennedy expresses concern about the sheer number of crimes that would be subject to the death penalty:
In reaching our conclusion we find significant the number of executions that would be allowed under respondent’s approach. The crime of child rape, considering its reported incidents, occurs more often than first-degree murder. Approximately 5,702 incidents of vaginal, anal, or oral rape of a child under the age of 12 were reported nationwide in 2005; this is almost twice the total incidents of intentional murder for victims of all ages (3,405) reported during the same period.Why isn't the high incidence of child rape a reason to up the penalty so that fewer children will be raped? Now that the death penalty for child rape has been held unconstitutional, will we see the number of rapes increase?
With respect to deterrence, if the death penalty adds to the risk of non-reporting, that, too, diminishes the penalty’s objectives. Underreporting is a common problem with respect to child sexual abuse. ...So isn't this the sort of balancing that is normally left to legislative choice? Kennedy says it's still a factor that the Court should take into account in analyzing whether the death penalty is constitutional.
The experience of the amici who work with child victims indicates that, when the punishment is death, both the victim and the victim’s family members may be more likely to shield the perpetrator from discovery, thus increasing underreporting....
In addition, by in effect making the punishment for child rape and murder equivalent, a State that punishes child rape by death may remove a strong incentive for the rapist not to kill the victim. Assuming the offender behaves in a rational way, as one must to justify the penalty on grounds of deterrence, the penalty in some respects gives less protection, not more, to the victim, who is often the sole witness to the crime.... It might be argued that, even if the death penalty results in a marginal increase in the incentive to kill, this is counterbalanced by a marginally increased deterrent to commit the crime at all.
ADDED: In dissent, Justice Alito (joined by the Chief Justice and Justices Scalia and Thomas) emphasizes the breadth of the decision:
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.’ ”AND: Alito notes that the Court's decision in Coker v. Georgia (invalidating the death penalty for the rape of an adult woman) created uncertainty and impeded the states development of the law and distorted the evidence of "consensus":
When state lawmakers believe that their decision will prevail on the question whether to permit the death penalty for a particular crime or class of offender, the legislators’ resolution of the issue can be interpreted as an expression of their own judgment, informed by whatever weight they attach to the values of their constituents. But when state legislators think that the enactment of a new death penalty law is likely to be futile, inaction cannot reasonably be interpreted as an expression of their understanding of prevailing societal values.The majority is really imposing its own "evolving standards of decency" to the question, Alito says. In this context, he questions whether it is"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. See, e.g., Tison v. Arizona, 481 U. S. 137 (1987) . 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?(Wouldn't anyone voting with today's majority have voted with the dissent in Tison?)
... I have little doubt that, in the eyes of ordinary Americans, the very worst child rapists—predators who seek out and inflict serious physical and emotional injury on defenseless young children—are the epitome of moral depravity....Alito elaborates the harm.
It's important that the majority also took the harm very seriously. This was not like Coker, where the Court was clueless enough to write, about the 16-year-old "adult" victim: "Mrs. Carver was unharmed."
Justice Kennedy does not gloss over the horrific harm to the child:
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....Nevertheless, in Kennedy's view, capital punishment is not "proportionate" to the crime in light of "evolving standards of decency that mark the progress of a maturing society."
An expert in pediatric forensic medicine testified that L. H.’s injuries were the most severe he had seen from a sexual assault in his four years of practice. A laceration to the left wall of the vagina had separated her cervix from the back of her vagina, causing her rectum to protrude into the vaginal structure. Her entire perineum was torn from the posterior fourchette to the anus. The injuries required emergency surgery....
[T]he victim’s fright, the sense of betrayal, and the nature of her injuries caused more prolonged physical and mental suffering than, say, a sudden killing by an unseen assassin. The attack was not just on her but on her childhood. For this reason, we should be most reluctant to rely upon the language of the plurality in Coker, which posited that, for the victim of rape, “life may not be nearly so happy as it was” but it is not beyond repair. Rape has a permanent psychological, emotional, and sometimes physical impact on the child.... We cannot dismiss the years of long anguish that must be endured by the victim of child rape.
It is an established principle that decency, in its essence, presumes respect for the individual and thus moderation or restraint in the application of capital punishment....It's very hard to find any argument about the depravity of this criminal act. What I see in Kennedy's opinion is mainly opposition to the death penalty and a fear of expanding it into a new area where it would need to be constrained by the kind of "narrowing aggravators" that restrict the death penalty in murder cases. Kennedy is particularly concerned that the crime of child rape "will overwhelm a decent person’s judgment," that this crime — more than murder — will make juries irrational and arbitrary. In any case, he tells us, the process of juries evaluating aggravating factors is well established. It's one thing to accept that, quite another to extend the process into a whole new area.
[We] insist upon confining the instances in which capital punishment may be imposed....
As it relates to crimes against individuals, ... the death penalty should not be expanded to instances where the victim’s life was not taken....
[T]here is a distinction between intentional first-degree murder on the one hand and nonhomicide crimes against individual persons, even including child rape, on the other....
So, for the death penalty and child rape, juries cannot be trusted, and legislatures cannot be trusted. This is one decision that the Court has seen fit to place in the judicial domain.
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140 comments:
"The experience of the amici."
Not being like Simon, I at first found this a comical term, though obviously I instinctively knew it was legalese.
"Amici curiae", friends of the Court. Ahh.
"A party that is not involved in a particular litigation but that is allowed by the court to advise it on a matter of law directly affecting the litigation."
This bit is the crux of the dissent:
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.’ ”
First, national consensus? Did they take a poll? I think the findings would be less unanimous as they imply.
Second, "evolving standards"? "Maturing society"? My word, if this doesn't sound like politically correct speech to denounce barbaric practises -- inferred is the very act of capital punishment itself.
I wonder if this one day will be cited as precedence to remove the death penalty in the USA altogether.
Cheers,
Victoria
They didn't ask me. I would say that the death penalty for any kind of rape is proportionate and reasonable.
Can these 5 mutts get any worse?
I don't think so.
Someone tell me again why we have a U.S. Supreme Court?
America is in big trouble.
First reaction: In Atkins, the court told us that in looking for evidence of national consensus, "[i]t is not so much the number of these States that is significant, but the consistency of the direction of change." That is the first man overboard today; as the court admits, since Louisiana introduced this statute, five states have followed its lead, slip op. at 12, and three more are actively considering doing so, slip op. at 20; Brief for Respondents 38. The number of jurisdictions that have gone the other way is zero; the most the court can do is a febrile exhortation that the remaining 44 states have not made changes either way. So much for the significance of the consistency of the direction of change.
Second reaction: think about the incentives that the decision creates for states. To wit: "use it or lose it." Having thrown "consistency of the direction of change" under the bus, the court is back to counting heads (never mind that if today's approach were followed in Atkins, that case would have come out the other way). The trajectory of the court's recent jurisprudence is that if you're a state that doesn't authorize the death penalty for X, if X is challenged, the Supreme Sourt will count you as part of a consensus against the death penalty for X, even if you feel strongly the other way, and even if you've simply never given it any thought. You will forever lose the opportunity - speak now or forever hold your peace.
Third reaction: The upshot of Kennedy is that by a 5-4 margin, the Supreme Court of the United States claims that you and I - in fact a national consensus in America - believes that the brutal rape of an eight year old child (or a child of any age) is simply not important enough to warrant punishment by the death penalty if the people of a given state wish to authorize that penalty. Don't believe it. It is a funny kind of "national consensus" when only slightly more than half of a court drawn from the section of society most likely to oppose the death penalty believes it. Here's what the court has basically said: "Hey, parents: If your four year old is raped, don't worry. It's not a serious crime. And it's not just us saying that - your neighbor thinks so, too. Because there's a national consensus, you see. And if you think that capital punishment for 200lb guys who rape toddlers might be justified - well. The evolving standards of decency that mark the progress of a maturing society have passed you by, my immature, uncivilized friend. There is a national consensus." Is what Obama has in mind in saying he wants heart and empathy - more judges such as these five? An ardent champion of justice, is the nominee of the Democratic party - justice, that is, for oversentenced child rapists. Or perhaps I am mistaken and he will condemn this decision - don't hold your breath.
Anyone who thinks there is an emerging national consensus against the death penalty needs to get out and talk to normal people once in a while. Polls routinely show solid majority support for the death penalty. That doesn't make it a good idea, but it does mean that any attempt to claim there's a social consensus against it is bunk.
The Court claims to have identified “a national consensus” that the death penalty is never acceptable for the rape of a child
There is 'a' national consensus. I notice he doesn't specify which nation has this consensus.
Hopefully, someone is doing a very solid poll of what the United States consensus is on this subject.
I'm also curious what the national consensus is on how long a child rapist will live when sentenced to life without parole in a Louisiana prison. Seems like death row, and the 20+ years it takes to go through there, is a safer place for such people.
Thanks, Ann, for your thoughtful commentary. I'm outraged, too.
http://gprr.blogspot.com/2008/06/us-supreme-court-limits-death-penalty.html
Kennedy's admission that the court's Eighth Amendment caselaw "is still in search of a unifying principle" is interesting because it isn't true. It lacks a legitimate unifying principle - See Herbert Wechsler, Toward Neutral Principles of Constitutional Law, 73 Harv. L Rev. 1, 19 (1959); Kent Greenawalt, The Enduring Significance of Neutral Principles, 78 Colum. L. Rev. 982, 985-7 (1978), but the unifying principle is readily apparent: "in Furman we moved too quickly, so must change strategy and work towards the elimination of the death penalty piece by piece."
Today's opinion, while horrific, is merely the latest, predictable episode in the court's recent trajectory in the Eighth Amendment area. In Atkins, at least, there was a fundamentals of justice argument: the defendant was mentally incompetent. In Roper, the defendant knew exactly what he was doing, but he was just too young, the court said. In Kennedy, the defendant knew exactly what he was doing, but rape's just not a big enough deal to justify the death penalty.
If rape isn't (assuming away evidentiary problems generally and specific to rape), then what crime is a big enough deal? The natural instinct is to take the court at its word: murder is a big enough deal. Do not believe it. That answer is imprecise, given the court's trajectory: it would be more accurate to say that murder is a big enough deal today. Tommorow? Who knows. It's Constitutional Law as magic eight ball - "ask again later." I can't find it now, but a couple of years ago, I pointed out here that if you ask a living constitutionalist whether the death penalty is unconstitutional, the only honest answer they can give you is "not yet."
Rev, there's a clear consensus against the death penalty. At least, there is among European elites, and the job of the Supreme Court is to make Justice Tony look empathetic and compassionate for his buddies. Today's decision - dismissing, as it does, the years of long anguish that must be endured by the victim of child rape - will make him look super duper civilized when he heads off on vacation.
Anne asks: So isn't this the sort of balancing that is normally left to legislative choice?
No, Anne! Don't you know that the legislatures of the masses are unwashed and uninformed and totally incapable of making such determinations.
Clearly the highly educated and superior few can't stand by and allow the common rabble - those stupid, unenlightened hicks and their hack political representatives - to make such important and lofty decisions.
The standards of decency are evolving, you know. And it would help speed the evolution if the over-breeding horde - the little, insignificant people out in the states - would just shut up and get in line with the already fully evolved 5 justices of the Supreme Court.
How many times do they have to tell us that before we get it and stay quietly in our places?
They should just call it the Kennedy court; decisions are based on his whim at any given moment.
Why isn't the high incidence of child rape a reason to up the penalty so that fewer children will be raped?
This assumes that the death penalty deters more child rapes than does imprisonment. I suggest that those monstrous enough to rape a child do not rationally weigh the possibility of punishment, or if they do, they assume either that they won't get caught because they will intimidate the child into keeping quiet, or because they will intimidate the mother into keeping quiet.
Now that the death penalty for child rape has been held unconstitutional, will we see the number of rapes increase?
I doubt it, but one could try to analyze the data from Louisiana and other comparable states without the death penalty for child rape. Look at the incidence before the death penalty was enacted, between enactment and the appeal, from then to now, and then post-USSC decision.
imposing the death penalty for child rape is inconsistent with “ ‘the evolving standards of decency that mark the progress of a maturing society.’ ”
Although at common law all felonies could be punished with the death penalty, in recent memory the death penalty has been reserved for First Degree Murder. More recently there has been a movement to end the death penalty, because of the defects in the conviction process revealed by the growing number of the condemned who have been freed based on DNA evidence, as well as for humanitarian reasons. Therefore, although the crime of child rape shocks the conscience to the point that the death penalty seems appropriate, in general the movement to end the death penalty is growing.
What would be the national consensus on a Constitutional amendment preventing Supreme Court justices from leaving these shores?
Pretty high I suspect. Our evolving standards of decency fret about their travel safety when they go so far away.
The five stooges strike again.
Victoria said: Second, "evolving standards"? "Maturing society"? My word, if this doesn't sound like politically correct speech to denounce barbaric practises -- inferred is the very act of capital punishment itself.
It's liberal-progressive codespeak for, "Someday this backward country will grow up and learn to behave just like all those enlightened European countries we admire so much. Meanwhile, we of like mind on the Court will take every opportunity to impose our mature views on the barbarians no matter how many of them there are."
in general the movement to end the death penalty is growing.
Yes, it's growing so much that states are passing laws to expand their use of the death penalty.
I think NOT putting child rapists to death is a lowering of our standards of decency.
The USSC think such human animals are deserving of mercy? I don't.
Shorter FLS: The specifics of this case and child rape don't matter so long as it leads to a general ban on capital punishment.
Doesn't it seem obvious that reporting rates and deterence are entirely irrelevent to the question of Constitutionality?
Can someone again explain to me how the USSC is packed full of right-wing reactionary Bush cronies?
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.’ ”
Marvelous. See the evolving standards of a maturing society is killing unborn children because that's choice you see. Whereas, executing filth who commit the most henious acts of sexual deviancy against an innocent child is wrong because that's not what 'mature societies do'.
This is actually why I don't debate liberals anymore because they are so far off the logic path you can't even find uncommon ground to start with.
Now that the death penalty for child rape has been held unconstitutional, will we see the number of rapes increase?
Why? We do a lot more (such as much longer sentences, plus registration of sex offenders) than we've ever done in the past to stop sex offenders. As far as the death penalty being a deterrent, that also does not hold water-- since virtually all criminals believe they won't be caught in the first place, plus if the death penalty was such a deterrent why wouldn't places that don't have it, like North Dakota and most of Europe, be awash in murders? (I mention North Dakota because there was one year when the total number of murders in North Dakota was less than the number portrayed in the movie, Fargo-- but there are twelve (now thirteen, with New Jersey joining the state this year) states that don't have the death penalty. I don't think as a group that they have a higher murder rate than surrounding states that do have the death penalty.
This decision is just too cute--as the dissent convincingly points out, the Court uses the few number of states imposing the penalty as evidence of a concensus against it, when the Court's dicta in the earlier adult rape case caused various legislatures to choose to avoid possible legal challenge. Thus, the Court forced the very "concensus" it now cites.
The various policy arguments advanced by the Court are ludicrous in the context of a Constitutional provision unambiguously designed to protect the accused.
This Court has gotten to the point that if it doesn't like something it finds it unconstitutional. The basic notion that not all wrongs violate the Constitution is gone. Look out for the Obama Court!
Here is my question though regarding Kennedy's opinion:
According to NPR this morning, they said that he wrote that the death penalty cannot apply to a crime which does not result in death. Does this also then overturn the Federal statutes regarding treason? The last time it was used to execute anyone was the Rosenbergs, who were convicted in 1950 of giving state secrets (specifically the design of the H-bomb) to the Soviet Union (though the Reagan administration considered asking for the death penalty for the Walkers in the 1980's.) I wonder if anyone thought about that.
Eli, you reject deterrent effect; do I take it that you also reject punishment as a sound basis for capital punishment, too? I think that most people - those people who the court mislabels as having formed a consensus against capital punishment for child rape - see it in punitive terms. We might expect as much - it's not, after all, called "capital deterrence."
Common sense in reading the Eight Amendment would be that "cruel and unusual" pertains to the nature of the punishment, not to whom it is applied. But that's me.
Eli, regarding treason and so forth, the court addresses that: "Our concern here is limited to crimes against individual persons. We do not address, for example, crimes defining and punishing treason, espionage, terrorism, and drugkingpin activity, which are offenses against the State." Slip op. at 26. Alito is skeptical: "The Court takes pains to limit its holding to 'crimes against individual persons' and to exclude 'offenses against the State,' a category that the Court stretches—without explanation—to include 'drug kingpin activity.' But the Court makes no effort to explain why the harm caused by such crimes is necessarily greater than the harm caused by the rape of young children." Dissent at 21-2 (citation omitted).
This assumes that the death penalty deters more child rapes than does imprisonment. I suggest that those monstrous enough to rape a child do not rationally weigh the possibility of punishment, or if they do, they assume either that they won't get caught
Under that logic no form of punishment could deter rape. We know for a fact that is false, ergo your argument is faulty.
Although at common law all felonies could be punished with the death penalty, in recent memory the death penalty has been reserved for First Degree Murder.
That is incorrect. Existing state and federal law also allows for the death penalty for murders (first degree or otherwise) carried out during other criminal activities such as kidnapping, drug smuggling, or bank robbery, or when the victim is a law enforcement or court agent. In addition, espionage and treason both carry the death penalty, as does rape in some states.
More recently there has been a movement to end the death penalty
Your chronology is entirely wrong. The death penalty was allowed for rape until 1977, when the Supreme Court discovered a secret part of the Constitution that banned the practice. The movement to end the death penalty is not "more recent" than that. There has been a movement to end the death penalty since before any of us were born.
SGT. Ted: Apparently Louisiana was the first state to enact the death penalty for child rape, in 1995. Since it has been joined by South Carolina, Oklahoma, Montana and Texas . So the US went for decades without a child rape death penalty.
Jeremy: I simply addressed two of Ann's questions, and the question of an evolving national consensus. I don't think Louisiana, SC, OK, MT and TX represent a broad-enough cross-section of the nation from which to draw conclusions about a new consensus forming. Texas is definitely an outlier when it comes to executing people.
Simon - Rev, there's a clear consensus against the death penalty. At least, there is among European elites, and the job of the Supreme Court is to make Justice Tony look empathetic and compassionate for his buddies. Today's decision - dismissing, as it does, the years of long anguish that must be endured by the victim of child rape - will make him look super duper civilized when he heads off on vacation.
Don't lay it all on Kennedy, though you are right that it would absolutely ruin his whole summer with the Euro Elites if he was on the side of crass, primitive Americans and their barbaric, sadistic need to put maladjusted victims of society to death.
Lets not forget that whenever Pappy Bush is sorry he ever had Dubya, he can cheer up and say fathering Dubya was not as bad as appointing Souter.
And the way the two Transnationist Jews, Breyer and Ginsberg, vote, is a given in any Supreme Court ruling. Solidly Leftist and solidly anti-American culture and values.
Stevens is like O'Connor as she went into semi-senility. His opinions defy all logic, and he seems determined to show, like her, his "greatness and independence" by voting in his later years against the sort of person Stevens was when he was initially appointed.
***********
That said, Kennedy and his 4 cronies continue their arrogance, this time saying some mythical "evolving standards of decency", which they fail to cite the source of in the opinion is what the Public wants, though they may be too stupid to notice it when they pass state laws.
Obviously rape runs a spectrum in US law that is arbitrary and capricious, from what I would call a completely banal "non-rape" like a 16-year old happily screwing her 18-year old boyfriend to a 4-year old whose reproductive organs may be torn and ripped in a savage adult rape. And the latter is a case of heniou crime that really is beyond what any objective poll would show the American People believe is the minimum to allow such a monster to remain entitled to his right to draw another breath.
The Constitution is not a tool created for the New Sanhedrin to establish an unaccoutable judicial supremacy over the People. It is an instrument, an Operating Manual The People created for elected and appointed officials to serve and administer to, not rewrite it when elite lawyers feel like it. It should only in the rarest extremes, when reasoning is crystal clear why public sentiments are wrong or at cross-purposes, be acceptable to be used as an instrument of those elites to thwart democracy and the Republic, and usurp the Will of the People.
Too much arrogance and unaccountabilty undermines respect for rule of law and leads the public to cheer mass defiance of asinine laws or favor vigilantism against, say a violent sadistic child rapist by the child's relatives, society, or jail prisoners who decide living alongside such a creature is intolerable...
As far as the death penalty being a deterrent, that also does not hold water-- since virtually all criminals believe they won't be caught in the first place
First of all, "virtually all believe they won't" means "some believe they will". So you're arguing that even though some criminals believe they will be caught, the idea of being killed by their captors has no deterrent effect. That doesn't make much sense.
Secondly (as I noted above), your claim implies that no form of punishment deters criminals, which is not supported by either empirical evidence or common sense. Ask yourself this: if first degree murder carried no punishment beyond a $1 fine, would the first degree murder rate increase? If "yes", that means that fear of punishment deters murder.
if the death penalty was such a deterrent why wouldn't places that don't have it, like North Dakota and most of Europe, be awash in murders?
We would only expect those places to be "awash in murders" if the deterrent effect of the death penalty was enormous. Nobody is claiming that it is.
Louisiana was the first state to enact the death penalty for child rape, in 1995. Since it has been joined by South Carolina, Oklahoma, Montana and Texas . So the US went for decades without a child rape death penalty.
18 years is not "decades".
I don't think Louisiana, SC, OK, MT and TX represent a broad-enough cross-section of the nation from which to draw conclusions about a new consensus forming.
"New consensus"? There was never an OLD consensus that the death penalty should only apply to murder. That was decided by the Supreme Court, not by voters.
Under that logic no form of punishment could deter rape. We know for a fact that is false, ergo your argument is faulty.
I like to think that common decency prevents people from raping children. But we're considering the incremental deterrence of an incremental punishment, not the difference between punishment and no punishment. As mentioned, a life sentence as a child rapist would not be pleasant. An assured painless death might be welcome, and thus less of a deterrent. In any event, the purpose of punishment is to punish, not to deter.
Existing state and federal law also allows for the death penalty for murders (first degree or otherwise)
To my knowledge all murders that carry the death penalty are defined as first degree. Again, I welcome corrections. As far as espionage and treason, I'm too young to remember the Rosenbergs. Wikipedia's article on Coker v. Georgia describes the near-disappearance of the death penalty for rape by 1977:
In 1925, only 18 states authorized the death penalty for rape. In 1971, on the eve of the Court's Furman decision, only 16 states authorized the death penalty for rape. But when Furman forced the states to rewrite their capital sentencing laws, only three states -- Georgia, North Carolina, and Louisiana -- retained the death penalty for rape. In 1976, the capital sentencing laws of North Carolina and Louisiana were struck down for a different reason. In response to those reversals, the legislatures of North Carolina and Louisiana did not retain the death penalty for rape. Thus, at the time of the Coker decision, only Georgia retained the death penalty for the crime of rape of an adult woman.
Your chronology is entirely wrong.
Hon, I'm talking about the growth of the anti-death penalty movement caused by DNA evidence's exonerating the condemned. Did your eyes skip over that?
former law student said...
"Jeremy: I simply addressed two of Ann's questions, and the question of an evolving national consensus. I don't think Louisiana, SC, OK, MT and TX represent a broad-enough cross-section of the nation from which to draw conclusions about a new consensus forming. Texas is definitely an outlier when it comes to executing people."
Of course, we will never know, now. One thing that is absolutely clear - even the court cannot bring itself to add one extra lie to the opinion to dispute this - is that to the extent there is momentum, a direction of change, it lies in the direction of expanding the death penalty to cover rape. As Justice Alito points out, "[i]n terms of the Court’s metaphor of moral evolution, these enactments might have turned out to be an evolutionary dead end. But they might also have been the beginning of a strong new evolutionary line. We will never know, because the Court today snuffs out the line in its incipient stage."
Had the roles been reversed - i.e. if most jurisdictions allowed it and six jurisdictions had moved to forbid it, we need not speculate as to what significance that would hold for the court. The court already answered that question in Atkins. That opinion is now also revealed as mendacious: the court may have said that "[i]t is not so much the number of these States that is significant, but the consistency of the direction of change," but clearly, it is not so much the consistency or volume of change, but rather, whether it is going the correct way.
fls-
Fair enough.
You said "Louisiana, SC, OK, MT and TX [don't] represent a broad-enough cross-section of the nation from which to draw conclusions about a new consensus forming" and yet the court goes right ahead and does draw a conclusion. They conclude that there isn't a consensus. If there's not enough data, the proper thing to do is to say, "We don't have enough data yet" and kick it back to the States for a while longer. (BTW, I think the court is including GA in their count).
By banning this now, the court is ensuring that there can never be a consensus. Afterall, how many states are going to pass laws that are explicitly unconstitutional. There's no room here for your evolving standards.
...the crime of child rape shocks the conscience to the point that the death penalty seems appropriate, in general the movement to end the death penalty is growing.
That's all well and good, but it misses the point by a very wide mark. "General movements to end the death penalty" are meant to happen in state legislatures, voted on by elected representatives. Not by Federal judicial edict. Most assuredly NOT by Federal judicial edict.
That, whether you believe in the death penalty or not, is the entire point.
This is something that if the GOP has even the vestige of a political instinct left, it should use as a tool. Senator McCain should introduce a Constitutional amendment reversing this decision, and shut down the business of the Senate until it's passed. Are the Democrats going to go on record as being for child rapists? Given the total sham that is the court's supposed national consensus, state legislatures would quickly pass a carefully-written amendment.
I do not support the death penalty under any circumstances...
But...did I read the opinion correctly? Is one of the court's arguments that by having child rape be a non-death penalty crime, it reduces the chances of the rapist killing the child? I'm sure that's a comfort to someone while they're being raped...Hey, there's no death penalty for rape, so I can rest assured that this guy won't kill me.
What if the rapist does end up killing his victim after the rape?
And isn't rape universally considered a worse crime than murder? I'd rather be murdered than raped, quite frankly.
To me, the death penalty doesn't make sense for moral reasons. But the court's decision doesn't make sense for logical reasons.
Kennedy's national consensus is total Bullshit. Most legislatures were just following Coker -- there's no national consensus because the Court told states not to have the death penalty for rape. So now a majority of states are supposed to have test laws to show a consensus?
Is 26 states the new number to amend the Constitution now? or perhaps 15? What exactly IS a national consensus? My Constitution says 3/4 of all states which is 37 states is required to amend the Constitution. Kennedy et al. should at least be consistent when finding a consensus or lack thereof.
Much of the recent opposition to the death penalty is driven by the realization that relying on our legal system to deliver the correct verdict is like relying on the Post Office to deliver your mail to the correct address: do you want to bet your life on it?
And the unreliability of the legal system has primarily been revealed by DNA tests in rape cases. One can only assume that the same level of (un)reliability exists in cases where no DNA evidence is available. And when children are involved--well, you can ask Mr. McMartin what happens then.
Ann says:
"So, for the death penalty and child rape, juries cannot be trusted, and legislatures cannot be trusted. This is one decision that the Court has seen fit to place in the judicial domain."
This caps a clear and thoughtful analysis of the case. Note she does not say "THE" one decision that the court has seen fit, etc. Of course there have been many others.
This decision does not outrage me but it does fill me with sadness.
It is a terrible sad moment when our highest court concludes--as it does--that it can not trust the people of a state and their representatives to make the difficult judgment whether capital punishment in the event of rape is consistent with society's standards of decency. Nor is the court willing to trust juries to exercise discretion in applying the standard in particular cases. Even more sad is that the there is unlikely to be a strong reaction in any but "conservative" quarters to this lack of trust. This is not a new development, of course, but it is near commonplace now, in courts at every level.
Distrust of the representative process seems to be a hallmark of the Court in this complex era, but the consequences of this attitude, in future times when courts may be less "enlightened" could be more severe than we imagine.
Troy has left a new comment on the post ""We cannot dismiss the years of long anguish that ...":
"Most legislatures were just following Coker...."
Well, Judge Kennedy (one cannot bear to call a member of this majority by the usual honorific) has an answer for that, too. He says that state legislatures couldn't possibly have followed Coker, because Coker only pertained to the rape of an adult woman. In other words, they couldn't have relied on Coker because that would misread Coker. Which is not only illogical, but false, as Justice Alito explains. Astonishing, moreover, given that eight members of the court that decided Coker believed it shut down the death penalty for all non-murder crimes.
Ann added:
"It's important that the majority also took the harm very seriously. Justice Kennedy does not gloss over the horrific harm to the child[]."
Respectfully, and respectively, they don't, and he does. Describing the injuries does not, in my view, amount to taking the harm seriously. If the members in the majority really took the harm seriously, this case would have came out nine to nothing the other way. There is nothing in the original meaning that justifies this result, nothing in the evolving standards of decency that justifies it, so we're left only with the independent judgment of the court. And if that independent judgment took the harm seriously at all, it could not come out as it did.
Justice Kennedy said...
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....
And yet Justice Kennedy is unwilling or incapable of not siding with children who are visited by such horror that he cannot enumerate, by allowing states to sentence these perpetrators of these horrors the death penalty because in effect the punishment doesn't fit the crime? But if you kill a child after you've raped them, then you can apply the death penalty? Are you fucking kidding me?
So now the Constitution falls under the evolving standards test? Red flag for me. Justice Kennedy just said that the Constitution is a living document that can change at the courts or under judicial whims? We really are living in a bizarro world.
An appropriate punishment that both respects the court's non-death-penalty bent and its internationalist aesthetic would be to take convicted child rapists, give them parachutes and drop them over Zimbabwe with "MDC" painted on their chests. If you've had the opportunity to be damaged by reading Human Rights Watch's recent report on the status of things in that unfortunate place since its recent election, you'll know that what'll await our child rapist convicts are fun activities like being stripped, having one's genitals tied to logs with barbed wire, and being beaten with clubs, chains and iron rods until one moves the log around, by the wire.
Hey, at least it's not the death penalty!
To me, the death penalty doesn't make sense for moral reasons.
To me the care and feeding of individuals who take the lives of people over $2 or rape four year old children doesn't make sense for moral reasons. Maybe you think those kind of people are deserving of continuing to waste our oxygen. I don't.
I think the Constitution in this case has been now used as toilet paper since 'national consensus' that was never taken, 'evolving standards' that have never been mentioned before (to my knowledge) much less defined, and 'maturing society' is a sure sign to me that the Constitution is no longer being considered as a founding static document that governs this country and is now going to be rewritten to suit the courts unending need to seek approval from the UN and European law. Watch and see the accolades come in from various 'groups' applauding this decision and you will know that this isn't the United States our Founders helped to begin and define. Another shameful day.
Well...score one for McCain. Much moreso than Boumedienne, this decision demonstrates how far off the rails judges can go. Ann's analysis and excerpting just leave you gasping at the arrogance of a judge like Kennedy who thinks he can interpret the mists of "evolving consensus" and place that above the laws passed by elected legislators.
I admit, I'm "evolving" away from capital punishment. If I had been given a vote as a legislator on this law, I would have had to overcome doubts about whether to trust prosecutors with this tool in cases like this where the potential for grandstanding and media manipulation is so high. But if I had come to the conclusion that my state had institute sufficient safeguards so that I was comfortable voting yes on the law, I would resent the hell out of Justice Kennedy for running roughshod over my judgment and, in effect, telling me I was a moral cretin in his eyes.
As the day wears on I find myself just incredibly disappointed in the USSupremeCourt.
Following the Boumedienne decision, it's hard to remember a time when the Supreme Court has been more arrogant, more ideological, more agenda-driven and frankly less American.
We have a very real problem on our hands with these 5 stooges, folks.
Putting people like Scalia and Roberts, Alito and Thomas on the court is simply not good enough. And because putting 4 rocket-scientist-smart Conservatives on the court is not enough, well, I'm just not able to come up with realistic solutions.
John McCain has made it plainly obvious that he will say to Conservatives whatever he thinks we want to hear and that he intends to do whatever he wants if he gets elected. And that's "if" he gets elected.
We know Obama would match the 5 monsters on the Supreme Court person for person given the chance.
What kind of monster could read the specifics of the child rape case and decide that the death penalty is disproportionate?
It's just unbelievable. What kind of system of legal education and career/industry could create monsters like these? What kind of hell must these monsters live in?
How incredibly sad.
Methadras said...
"So now the Constitution falls under the evolving standards test?"
The court has been construing the Eighth Amendment according to that test - or at least, purporting to - for many years. The "evolving standards of decency" language itself is half a century old, dating back to dicta in Trop v. Dulles, 356 U.S. 86 (1958). I don't approve of that test, but if that's going to be the test, at least apply it honestly. Make an honest assesment of the standards of society.
I think this is part of Justice Kennedy's secret plot to install a Republican president for another four years. Sure, it's a paranoid thought, but it makes as at least as much sense as his opinion.
paul a'barge said...
"Following the Boumedienne decision, it's hard to remember a time when the Supreme Court has been more arrogant, more ideological, more agenda-driven and frankly less American."
Short memory. The early 1970s? Roe and Furman?
Next time you try to sell a house and the buyer says it has termites, just tell the buyer that the house has an evolving standard of stability.
The next time a bridge in Minn falls down and the legislature looks to blame the buider, the builder should say that the bridge cement and steel had a evolving standard of strength.
Who among you wants to live or work in a high rise in NYC that has an evolving foundation that chnages on its own?
As one jurist once said, and is now routinely ignored, "this is, after all, a CONSTITUTION we are interpreting."
But this court has made it into duc tape - able to be applied anywhere to fix anything it thinks is broken.
Simon: Short memory. The early 1970s? Roe and Furman?
I take your point. Not a short memory, but the Boumedienne and now the child-rape case rival those.
Let's see: on one side more child rapes; on the other side Justice Kennedy's delicate sensibility about imposing the death penalty.
Yup, no doubt about it, let child rapes go forward rather than offend Kennedy.
A no brainer.
Maybe you think those kind of people are deserving of continuing to waste our oxygen. I don't.
I'm not going to debate the death penalty, I'll only clarify that my opposition to it has nothing to do with how the criminals are treated and if it's inhumane (I could care less about the criminals), but instead the simple idea that a civilized society should not be in the business of carrying out executions.
Hoosier Daddy, did you get the link to that web site from Cedarford? Just sayin'.
As with many legal phrases, "cruel and unusual" is an elastic terms, susceptible to being interpreted differently in different times. Therefore assessing the current standards of decency is important to determining what should be considered cruel and unusual.
Can state legislatures pander to the baser side of human nature? Or does a 50%+1 legislative majority automatically define our current standard of decency?
Zachary Paul Sire said...
but instead the simple idea that a civilized society should not be in the business of carrying out executions.
This decision is exactly the reasons why a civilized society should impose and carry out executions. It's for the betterment of the society to remove those would prey upon society most vulnerable of it's citizens. You are relegating society to the characterization of that of lambs by opposing executions to those wolves within that characterization of society.
Why must we give the benefit of 'human rights' to those that don't even have a modicum of the understanding of it. We as supposedly civilized people neglect the fact that in order to remain civilized we must remove those that would feast and prey upon us and our children to further degrade our civilization. Why must mercy be reversed to the accused and not to the victim? Where is the justice to anyone in a society when that society allows it's most depraved monsters to live.
you are trying to emote some sort of cerebral form of punishment as if child rapist got caught with his hands cookie jar and in the knowing you catch him in the lie when asked why he was stealing cookies. It doesn't serve anyone by having a child rapist around. What are you going to expect from him, rehabilitation, remorse, undying servitude at rectifying his crimes? You will get none of these things because he is a sociopath, a monster and humanity cannot abide by having monsters living amongst us. And this decision reaffirms the idea that justice for our most vulnerable citizens is meaningless and without merit. What do we do with animals that have tasted man-flesh, we find them and kill them because we don't want them preying on human because that is what they will seek? When it just so happens to be humans preying on our children, Justice Kennedy says killing these human monsters offends the sensibilities of the evolving standards of the Consitution. You know what? fuck him and the other four who think the same because at this point, whatever string of respect I had for SCOTUS is flying out of the window as I type this.
former law student said...
"As with many legal phrases, 'cruel and unusual' is an elastic term[], susceptible to being interpreted differently in different times."
Well, that's how it's been understood. But it's readily apparent that the court uses the "evolving standards" as a fig leaf to minimize the perceived weight of the second part of the test, the exercise of its "own judgment." Both are problematic, and it seems to me that reading the clause as it's been read since Weems just isn't working. There doesn't seem to be a way of adjudicating these questions based on neutral, general principles.
"Justice" Kennedy's admission that they're deciding cases without having a fully developed concept of the legitimate reason why ("still in search of a unifying principle") is a hugely problematic statement that calls Justice Scalia's opinion in the League v. Perry case to mind. There, faced with another Kennedy mess (this time involving gerrymandering claims for which "no party or judge has put forth a judicially discernible standard by which to evaluate them"), Scalia observed that "[w]e must either conclude that the claim is nonjusticiable and dismiss it, or else set forth a standard and measure appellant’s claim against it." As that doctrinal minefield, this doctrinal minefield. More and more, lately, I toy with the idea of concluding that the exercise is futile, and that the court should consider abandoning this rocky road and holding that any legislatively authorized punishment should be held nonjusticiable in terms of the Eighth Amendment, which is in any event more properly read, I think, to prohibit judicial creativity in punishments.
former law student said...
As with many legal phrases, "cruel and unusual" is an elastic terms, susceptible to being interpreted differently in different times. Therefore assessing the current standards of decency is important to determining what should be considered cruel and unusual.
Can state legislatures pander to the baser side of human nature? Or does a 50%+1 legislative majority automatically define our current standard of decency?
Under your language as I read it, you might as well be saying that a Constitutional Representative Republic is more of a fiction than an theory of government.
I have no particular desire to expand the use of the death penalty. I would pretty much prefer it not be available except in cases of first degree murder, and treason.
However, it seems to me that's a legislative prerogative. It's not up to the Judiciary to follow the "emerging consensus" but to enforce the statutes of the Constitution, statutes that don't change with the vicissitudes of public opinion.
Simon,
Beg to differ with you on the consensus about the death penalty in Europe. The Daily Telegraph quoted a poll that checked hat very thing and other than the academics, the consensus in Europe was in favor of the death penalty for certain crimes. I think this would be one of the crimes that the consensus would be in favor of that penalty and also would be in this country as well. There are few crimes that bring together the public fury as well as the rape of a small child.
Anyone who rapes a child of less than 3 years if age shouldn't just be killed, he should be tortured, castrated without anesthesia, then killed painfully and slowly. Better yet, he should be used in lieu of innocent animals in medical experimentation. Some benefit to society can thus be extracted from an otherwise worthless and nauseating person. A child of 3 and over should carry and be taught to properly use a derringer in case of kidnapping and rape. The kiddies should be taught to precisely aim for the perpetrators balls to teach the bastard a lesson he won't ever forget. The lefty tree-hugging parents who fail to properly arm their tykes, should be forced to battle their child's rapist in arm-to-arm combat - a reenactment of the gladiators of old in a Roman-style coliseum expect they will use hybrid vehicles instead of chariots. Tickets can be sold to the horrific spectacle to fund Simon's psychotherapy sessions for his bloviating outrage.
Doesn't section 4 make all of the musings in section 2 completely meaningless?
4. The concern that the Court’s holding will effectively block further development of a consensus favoring the death penalty for child rape overlooks the principle that the Eighth Amendment is defined by “the evolving standards of decency that mark the progress of a maturing society,” Trop, 356 U. S., at 101. Confirmed by the Court’s repeated, consistent rulings, this principle requires that resort to capital punishment be restrained, limited in its instances of application, and reserved for the worst of crimes, those that, in the case of crimes against individuals, take the victim’s life. P. 36.
If the Court was honest, they could haved mailed section 4 in on a postcard and bagged all the verbiage above it.
Justice has been here denied to a vast number of communities.
The likely outcome, easily foreseen, is the taking of law into one's own hands. Perpetrators and their families will disappear, and found dead, found scattered in so many pieces, or not found at all.
For justice must be served. The Supreme Court can make the rules, but it relies on the good will of the people to make it so. There are simply not enough cops and not enough cameras to keep every child rapist from harm.
This will make nominal criminals of the average citizen, but in negating the will of the people in favor of an elite rule, they are no longer citizens in any event, but instead merely subjects of the realm.
As I said, this is a clear invitation for the offended not to bother with the justice system, and simply remove the blight himself. Since the law has sided with the criminal in this case, the wise man nods and acknowledges he is beaten in those pillared halls.
But the rapist will need to carry on with his life, which means he will drive to the store, and take out the garbage, and go to work. One day, things will not go as planned. He'll be gone, just like that. And not one other citizen will give a shit when his bloated body washes ashore weeks later.
Seems every time we hear of a horrendous crime like this, the term "repeat offender" or "prior conviction" comes up. I just found a DOJ study of sex offenders from 03 that states:
The average sentence imposed on the 4,300 child molesters was approximately 7 years and, on average, child molesters were released after serving 3 of the 7 years.
Three years. Our justice system doesn't seem to have much problem releasing these guys early. The death penalty was at least a way to keep child molesters from being released to do more harm. And now that's out. Thanks, guys.
Pogo:
Death penalty or no, I would be tempted to resort to "self-help" should this happen to any child in my family. I could see myself in the back of the courtroom just hoping he made bail.
Question, are we able to evolve back to thinking it is okay to execute child rapists?
Knoxwhirled:
Be careful citing those studies -- what is a child molestor? One time touch on the breast of a 16 year old by a 23 year old or 23 year old having intercourse with a 7 year old? In my state, the 23 on 16 scenario is lifetime sex offender registration and 2 to 20 years in prison. Of course, you'd have to find a jury to convict which would be unlikely, but still...
I like to think that common decency prevents people from raping children. But we're considering the incremental deterrence of an incremental punishment, not the difference between punishment and no punishment.
You claimed that criminals don't weight the possibility of getting punished for their crimes. That claim has nothing to do with the incremental effects of punishment, as a person who doesn't consider the punishment they face must, by definition, be assigning the same weight (zero) to all punishments.
If you want to argue about the incremental deterrence, you will need to construct an argument stating that criminals don't consider the possibility of being killed to be significantly worse than the possibility of being jailed. That's a tough argument, since most people prefer being alive to being dead.
In any event, the purpose of punishment is to punish, not to deter.
As you should know, crimes carry a "penalty", not a "punishment" or a "deterrent". Punishment and deterrence are two of the main reasons for the penalty, of which the latter is the most socially important.
Hon,
I'm pretty sure I've never had sex with you, so I don't think we're quite at the "pet names" stage just yet.
I'm talking about the growth of the anti-death penalty movement caused by DNA evidence's exonerating the condemned. Did your eyes skip over that?
I didn't skip over it. You claim that DNA evidence caused such a movement is simply wrong; DNA evidence is just the latest argument from the same pool of people who have been opposed to capital punishment for years. It didn't "cause" any new movement against the punishment.
Or does a 50%+1 legislative majority automatically define our current standard of decency?
Does a 50%+1 judicial majority?
I think that the very word "sex" needs to be removed from all criminal sanctions. Sex is good, even better than, a knife. When we sanction murder, we don't much care that it was committed by knife. When we sanction physical abuse, we shouldn't care that it was committed by means of the male sex organ.
Until our Amerikan society grows up, we will continue to see laws specially sanctioning sexual activity and the resulting ruined lives and families (most child abusers are relatives), and lots of jury nullification, if I have anything to do with it.
My problem for me is that, while I don't want to set a rapist free, I will do it every time he faces incommensurate punishment.
God damn Amerika!
I believe most of you underestimate the resiliency and ability of children to recover from rape and other very bad and traumatizing events. It's only a life sentence for the victims because you've decide that in advance. You all need therapy and education to get over your intransigence, arrogance, & ignorance. But, while I think there is always hope for the victims to recover whether they are children or adults, I think it's too late for you REPEAT OFFENDERS of bleak narrow-mindedness.
The use of "evolving standards of decency" to determine what constitutes cruel or unusual punishment is idiotic. If the allowed evolution is one-way (i.e., in the direction of nicer and nicer "punishments") then it locks the justice system into an irreversible process of progressively greater and greater leniency. If "evolution" is allowed in both directions, on the other hand, the amendment ceases to have any meaning at all -- if a democratic consensus exists that death by slow torture is neither cruel nor unusual, then death by slow torture becomes permissible under the Constitution. That is, to put it mildly, not what the Founders had in mind.
The ban on cruel and unusual punishment only makes sense if the standard is fixed at its original meaning.
Right on Trumpit!
Many idiotic effects of our civil and criminal justice system can be attributable to the "thin-skull" doctrine, which basically says that you are responsible for the lifelong misery of a person you rape, regardless of the fact that her parents, her church and her schooling are the villains, having been brainwashing the victim throughout her youth that she will be "ruined" for life if ever raped.
It is a funny kind of "national consensus" when only slightly more than half of a court drawn from the section of society most likely to oppose the death penalty believes it.
LOL.
It's called Kennedy v. Louisiana for a reason.
Paddy O.,
I'll bet you'd get a bigger concensus for an amendment preventing them from coming back.
Trumpit, your posts read like pornographic revenge fantasies, as does 90% of the posts on the same topic over at HotAir.com
this is why scotus is wary about allowing the death penalty for such crimes I think.
It's the orgasmic glee people have in describing what they would like to do with such criminals.
I believe most of you underestimate the resiliency and ability of children to recover from rape and other very bad and traumatizing events.
The effect on the child is only part of it. Many children can, indeed, recover from horrible childhood events.
The other part, though, is what the act of raping a child tells us about the person who does it. We know that even if most of the victims do recover, a child rapist is a person we are well rid of. In other words, Trumpit, it isn't that we're underestimating the child's resilience, but that you are overestimating the value of the rapist's life. Gratifying yourself with the intentional infliction of horrible suffering on a child -- however transient the suffering may be -- sends a clear signal that you need to be rubbed out of existence.
That being said, I still don't like the idea of giving the state the power of life and death over its own citizens.
...most of you underestimate the resiliency and ability of children to recover from rape and other very bad and traumatizing events. It's only a life sentence for the victims because you've decide that in advance.
Truly the writing of an uneducated or even malicious person.
I see women every day who were assaulted in childhood, often repeatedly.
It causes memory impairment and PTSD. Not only did it impair their future intimate relationships, it often impaired their judgement, reduced their safety precautions, and their capacity to trust others.
Their suicide rate increases significantly. They engage in overeating (and become obese), cutting, drug abuse, and sexual promiscuousness. Some end up with chronic pain disorders, chronic fatigue, and major depression. Some become child molesters or abusers themselves. Some end up killers.
Even back in 2000, these brain changes were known:
* Limbic irritability
* Arrested development of the left hemisphere
*Deficient integration between the left and right hemispheres
*Increased vermal activity
Later studies have also confirmed a reduction in hippocampal size, the precise region where memories are formed. The same damage causes the forgetfulness as in Alzheimer's disease.
"So whatever a child experiences, for good or bad, helps determine how his brain is wired."
"These changes are permanent," says Teicher. "This is not something people can just get over and get on with their lives.
the stress caused by child abuse and neglect may also trigger the release of some hormones and neurotransmitters while inhibiting others, in effect remolding the brain so that the individual is "wired" to respond to a hostile environment.
"We know that an animal exposed to stress and neglect early in life develops a brain that is wired to experience fear, anxiety and stress," says Teicher. "We think the same is true of people."
So Trumpit, you are not only wrong, you are so completely wrong and out of date, you should be ashmaed of yourself. What you've just written is one of the most insanely idiotic things I have ever read. At no point in your rambling, incoherent post were you even close to anything that could be considered a rational thought. Everyone here is now dumber for having read it.
May God have mercy on your soul.
What's wrong with "We don't want adults having sex with children regardless of children's ability to survive and adapt to it?" Some things are just bad whether or not we agree how severe the consequences of the act are.
"Kennedy is particularly concerned that the crime of child rape "will overwhelm a decent person’s judgment," that this crime — more than murder — will make juries irrational and arbitrary." Why is it that liberals always believe that regular people like me cannot be trusted to make important decisions about what's right or wrong? I would bet that the word "decent" was carefully chosen. What he really wants to say is "common". You know. Like those common folk just can't be trusted. "Common" would be too condescending a word to use though.
Steven, go read the comment section over at HotAir re : this topic.
It's pure revenge fantasy, people describing the horrors of rape with glee at the thought of what they then will be allowed to do with the perpetrator.
It does overwhelm normal people, like trumpet they sound like raving muslim-imams orgasming over cartoons.
The thought of child rape turns normal men into monsters themselves.
jimbino,
Fellatio causes no physical harm to the person performing it. A gentle swat causes minor harm, in the form of brief (and minor) pain and perhaps a temporary red mark.
Is it your position, then, that a father who punishes his children by having them fellate him is being nicer and more lenient to them than a father who gives the a single swat on the bottom? Because that is the logical inference from your belief that rape is just the same as regular violence.
A second question -- you blame society for the fact that rape is viewed as worse than normal violence. Let's say, for the sake of argument, that that is true. Exactly where were you planning to raise the children after they've been raped? The moon?
Your argument is, in essence, that the rape victim wouldn't suffer any worse than he or she would from a normal assault if only the six billion people on Earth would discard a few million years of evolution and ten thousand years of culture and agree with you that sex is just another content-free kind of physical activity. That's an asinine viewpoint to hold. We do not judge criminals by saying "society should change to accommodate the criminal's viewpoint". We judge them by the standards of society.
More importantly, the rapist knows this. He knows there's no chance of the child getting to live in a world that *doesn't* think child rape is a big deal. How, then, can you excuse his behavior? That's like finding a guy innocent of murder-by-drowning on the grounds that *he* didn't fill the oceans with water.
"May God have mercy on your soul."
You don't have a soul, you have a tongue that need to be torn out and fed to a shark. What a long-winded blowhard you are Pogostick. You need a tax rebate so you can go shopping for more voodoo dolls. Bush and America failed you miserably. How many times were you raped that you can speak so voluminously, expertly about something you know absolutely nothing about? I bet you are a dried up prune of a celibate who's petrified of the musky scent of a virile man. Do you have rape fantasies? Admit that you're a trashy trampy claptrapy cross-leggedly crusty prude!
Just look what this topic does...
...that you can speak so voluminously, expertly about something you know absolutely nothing about?
I'm a doctor that has taken care of these patients for 20 years (outpatient and inpatient), researched (5 feet of file cabinet space, some 45 books), and spoken at medical conferences about the topic.
I'm a friend of a man who was repeatedly raped by a priest, and as an adult tried to kill himself several times.
I'm not the brightest guy in the world, but compared to you, I'm Steven Hawking and you're some bacteria on the gum stuck to his shoe.
UWSguy
Haven't you ever wondered why there is such a strong viseceral revulsion to this act? Might it not indicate a necessary survival mechanism, rather than some kind of childish tantrum?
It is as nearly basic as fear, another ingrained and visceral response which should not be rejected merely because it seems so "primitive" and unaligned with our modern and refined sensibilities, until the guy behind the bushes shoves a knife between your ribs.
It does overwhelm normal people, like trumpet they sound like raving muslim-imams orgasming over cartoons.
Why does it matter if it "overwhelms" people? That could be an argument against their ability to decide guilt or innocence, but how does it disqualify them from determining punishment?
What Kennedy is saying is that the crime is SO heinous that we have to disallow the really harsh punishments because people might be inclined to use them. How does that make any damned sense at all? What's the rule, there? That I can be sentenced to death for deliberately murdering somebody, but if I'm careful to make my crime so horrifying that it "overwhelms normal people" then I'll get life in prison at most?
Murder one guy: you fry. Murder ten kids, eat the corpses and mail their bones to the parents: too horrifying, so you live. That's a sane justice system? I think not.
I agree with you pogo about this reaction being hardwired into us. This was kennedy's point about our irrationality. This topic when brought up, drives men mad with bloodlust even with hypotheticals.
Revenant: it would "overwhelm" them to the extent you might as well allow the victims parents and family to sit on the jury.
I think that's Kennedy's point.
In theory I'm for the option of the death-penalty.
But peoples masterbatory revenge fantasies peppering the comment sections of blogs, gives me pause at peoples rationality.
How many times were you raped that you can speak so voluminously, expertly about something you know absolutely nothing about? I bet you are a dried up prune of a celibate who's petrified of the musky scent of a virile man.
Is anyone else creeped out by the way Trumpit suddenly started bragging about the "musky scent" of his personal virility in the middle of a conversation about rape? Then there's the way he assumes that people who favor harsh punishment of rapists are sexually deficient. Aren't we at least a few centuries past the point where manly men thought of rape as just good clean fun?
Revenant: it would "overwhelm" them to the extent you might as well allow the victims parents and family to sit on the jury. I think that's Kennedy's point.
So my hypothetical scenario was correct, then -- I can achieve a lesser sentence if I make my crime sufficiently horrific.
I don't have much to argue against you on that point. I guess my only thought is, sometimes we have to protect ourselves against our worse natures?
There are varying degrees of rape (mental trauma, physical, temporary physical...permanent etc) Murder is always permanent trauma.
Maybe kennedy fears we would devolve our decency over time and that any type of child rape (fondling) would be cause for the deathpenaly.
This is no so far off from say, Saudi Arabia where your hand is cut off for petty theft as well as grand larceny.
UWS,
But peoples masterbatory revenge fantasies peppering the comment sections of blogs, gives me pause at peoples rationality.
As I see it, there are two main arguments against capital punishment: first, that the defendant might be innocent, and secondly that we as a country shouldn't execute people. Jurors are not allowed to consider either of those arguments during the penalty phase, since (a) the man is at that point guilty as a matter of law and (b) jurors don't get to decide what punishments are legally allowed by the United States.
So, given that death IS an allowed penalty and given that they should not be worried about the chance that the man in innocent of the crime for which they have convicted him... exactly what is the rational AND legal argument for allowing the rapist of an eight year old child to remain alive? I can think of several emotional arguments ("human life is so precious!", "we shouldn't play God!", "but he had a rough childhood!", etc). But from a coldly rational perspective the guy's got to go.
Maybe kennedy fears we would devolve our decency over time and that any type of child rape (fondling) would be cause for the deathpenaly.
If Kennedy fears our views will change over time, he should stop advocating for "evolving standards of decency". Evolution is a process, not a direction; our standards can just as easily "evolve" to permit Saudi-style mutilation as they can "evolve" into namby-pamby Eurosquemishness.
"Aren't we at least a few centuries past the point where manly men thought of rape as just good clean fun?"
You have a filthy tongue that needs to be cut out for good. How dare you suggest that I said rape was "good clean fun" Fuck off, Irrelevant. I remember what you said about homosexuals, believing that homosexuals are dangerous & should rightly be treated as second class citizens; I won't let up reminding a bigot like you about your small-dick self. I happen to believe that you are worse than any rapist. I can tell by your libelous comments about me that you should be locked in a jail cell with one or three. If you get raped, too bad, you'll probably like it and ask for more. Why do I hate thee so? Let me count the ways. WORTHLESS WORM THOU ART ROMEO!
Fuck off, Irrelevant. I remember what you said about homosexuals, believing that homosexuals are dangerous & should rightly be treated as second class citizens
Oh, Trumpit is Downtownlad? I hadn't realized that. Explains a lot.
From the decision: ". . .The evidence of a national consensus with respect to the death penalty for child rapists, as with respect to juveniles, mentally retarded offenders, and vicarious felony murderers, shows divided opinion but, on balance, an opinion against it. Thirty-seven jurisdictions--36 States plus the Federal Government--have the death penalty. As mentioned above, only six of those jurisdictions authorize the death penalty for rape of a child. . . "
We are in far sadder straits than I previously imagined when Supreme Court Justices do not know the difference between a consensus and a majority. If six jurisdictions authorize the death penalty for the rape of a child -- heck, if ONE jurisdiction authorizes the death penalty for the rape of a child -- then there is no consensus. Shouldn't these people KNOW this??
Trumpit said...
I believe most of you underestimate the resiliency and ability of children to recover from rape and other very bad and traumatizing events. It's only a life sentence for the victims because you've decide that in advance. You all need therapy and education to get over your intransigence, arrogance, & ignorance. But, while I think there is always hope for the victims to recover whether they are children or adults, I think it's too late for you REPEAT OFFENDERS of bleak narrow-mindedness.
I believe you've neglected the merciless horrors visited upon these young children by their rapists. You are a buffoon of the lowest order. You are a mental infant that neglects common and you would put the onus of recovery on the child victim of rape instead and then call for any who disagree with your sociopathic assessments as needing therapy to combat arrogance and ignorance. Look in the mirror lately, little man or do you need a footstool to get that high?
It's people like you that are ruinous of common decency and common sense. You would go out of your way to hold the hand of a child rapist in aid and comfort and simply poo-poo the child as a creature that will eventually, due to age alone, somehow and miraculously recover from untold abuse and horrors placed upon him or her. As if time in this case is somehow a healing factor.
What would you say to a child victim of a rapist, "Get over it, kid." Yeah, of course you would, you piece of sub-human filth.
Fuck off irrelevant
ohh, I just got that lol. irrelevant/revenant ahhhh
UWS guy said...
Just look what this topic does...
That's exactly correct. It is the visceral nature of a crime like this that evokes the common sense rationality of people who would know what should be done with those that would commit such a horror upon children. However, you care more for maintaining some sort of air of superior sensibilities and look down your nose at those that would even suggest what should be done with child rapists. Did you applaud the court when this decision was handed down? How soon before the party begins? While you look around you with mock indignation at all of the commoners and how they react to such news, you end up worrying more for the accused and convicted than their young victims. Because to you, the system is more important as a whole than the protection of children from these monsters to begin with. So, in your milieu it is it now more preferable to live with the monsters knowing they won't be executed for such heinous acts or preferable knowing that the system protects them from actual justice while they are savaging their victims?
Trumpit said...
Why do I hate thee so? Let me count the ways. WORTHLESS WORM THOU ART ROMEO!
Thou dost protest to much, you skeevy homophile.
Hoosier Daddy, did you get the link to that web site from Cedarford? Just sayin'.
No from Google. Is that a problem?
Feel free to link to all the Nazi web sites you like. I wouldn't dream of telling you what to do. Happy cycling!
Methadras: I like your style of thinking! To paraphrase Orwell:
If you are not for the execution of child rapists you are objectively pro-child rapist.
What's to argue? You win. You win.
fwiw, jimbino has been posting sociopathic, borderline pro-child rape comments on this blog for years.
Feel free to link to all the Nazi web sites you like. I wouldn't dream of telling you what to do. Happy cycling!
Well I didn't realize it was a nazi website. I read the article not the mission statement Is this one suitable?"
How about this?
Here is the same story on Fox news or does that fall in the nazi category as well?
Personally, I'm more concerned about heftier, more certain prison sentences** for child rapists and assaulters, since that issue has been, is, and will continue to be more relevant in the vast majority of cases. We have (or had)--what?--two people on death row on account of child rape. And the last time someone was executed solely for a rape was--when?--40 years ago? Or something like that.
So, excuse me, please, if I find this whole discussion largely beside the point, practically speaking. Most child rapists, in most places, weren't ever going to be in the position of facing death. Hell, assuming they got caught even, most weren't--and aren't--in the position of facing an incarceration reliable, predictable and certain enough to at least give your average kindergartner the absolute confidence that his or her attacker wouldn't "graduate" from jail before the victim graduates from high school (or, in many instances and places, middle school; or even elementary school). That's the reality. And that's before one even gets into the issue of recidivism.
It's marvelous to get all hot and bothered about execution, from either side, intellectually and philosophically speaking. I mean, I get that. But how about diverting some of that energy in ways more practical and on point for the majority of situations in the majority of places?
(Yes, I know that, in the aggregate, sentences for rape, generally speaking, have gotten more harsh than many, many years ago. The starting point wasn't all that impressive, however.)
The ** in my first paragraph refers to the final, parenthetical paragraph in my comment.
Methadras ,
Those are fighting words....
I didn't know that death row inmates were allowed access to the internet. I'd love to be present for your death by lethal injection. I'd be happy to pull the lever to rid the world of disgusting gutter scum like you. I'll have to rethink my objection to the death penalty. Good thing you are behind bars though in the mean time. What are you going to ask for for your last meal? How about a taco?
reader
In my region, the judges routinely sentence child molesters to probation.
And my largely Democratic district keeps voting them back in.
Which sort of speaks to what I was trying to communicate (the partisan politics part of it aside) ... .
And perhaps, more importantly, Reader, does this decision mean that whatever steps are taken to increase penalties for the "common" molester will eventually be overturned by the Supreme Court?
Wasn't this a pleasant thread to read?
One reason to restrain states from the death penalty for child rapists is the child molestation ring hysteria of the early 90's, where innocent people were railroaded into long sentences, plus it's been used as a weapon in poisonous divorces. With rape, there should be physical evidence, but suppose the police are called months or years later?
But peoples masterbatory revenge fantasies peppering the comment sections of blogs, gives me pause at peoples rationality.
I think it's kind of fascinating that it's not enough to expunge--through threats of prison and lawsuits--mankind of any ability to act violently, there are those so delicate they would remove any violent thoughts or fantasies.
The reason something like this generates revenge fantasies is because it's among the most evil things imaginable. Murder--there are all sorts of reasons for murder that many of us can relate to.
But child rape? There's no excuse for it. FLS talks of "common decency" which almost misses the point. Most of us don't even need "common decency" to not rape children: It's just not an urge, and to have the urge to the extent that you would harm a helpless innocent to satisfy it qualifies you for complete removal from society.
"We cannot dismiss the years of long anguish that must be endured by the victim of child rape."
"...but that's exactly what we're going to do right now."
(Yeah, other people made essentially the same comment, but it's worth reiterating.)
And perhaps, more importantly, Reader, does this decision mean that whatever steps are taken to increase penalties for the "common" molester will eventually be overturned by the Supreme Court?
No. Why do you think, assuming that you do, that just follows, automatically, practically or even logically?
Also, what's with the quote marks around "common"? For that matter--what's with the choice to use the word "common," in that particular sense of the word, in response to what I wrote?
For the record, Blake, lest there be any confusion, I do not--in any way, shape or form--"dismiss the long years of anguish" dimension[s] relevant to this discussion.
reader: thank you for your sensible point of view as always.
pogo and blue moon: one of the points made was that the rapist is often a family member: dad or stepdad (in this case) or mom's boyfriend. Assuming a child at the complete mercy of her rapist, and assuming a rapist who rationally weighs his options, is the child better off if the death penalty is available for rape or if it's reserved for murder?
I'm going to argue that the rapist would prefer the child remain alive for continued access, so I don't have a position in this case.
With rape, there should be physical evidence
Define, please.
paul a'barge said...
Can these 5 mutts get any worse?
I don't think so.
Someone tell me again why we have a U.S. Supreme Court?
America is in big trouble.
why? a life sentence in our prisons for this crime is still an awesome punishment. and the amicus briefs laid out convincing arguments as to why the imposition of the death penalty could lead to fewer apprehensions and greater incidents.
what, besides your bloodlust, has this decision thwarted to put "america in big trouble?"
the majority here decry the decision as "un-american" while simultaneously demanding the torture of the convicted
deeply ironic
Why do you think, assuming that you do, that just follows, automatically, practically or even logically?
It follows logically because the Court has decided that it has the power to declare a punishment "cruel and unusual" without the need for either the people of the United States or the historical view of the Founders to be in agreement with them. There is no logical limit to the degree to which they can decide to limit punishment; the allowed punishments depend solely on the whim of five men and women in Washington.
As a practical matter, it there is no reason to assume Kennedy and his four allies will consider life in prison without parole (for example) to be an acceptable punishment for child rape either. It is, after all, not "proportional" either, since it exceeds the inconvenience caused to the child.
Assuming a child at the complete mercy of her rapist, and assuming a rapist who rationally weighs his options, is the child better off if the death penalty is available for rape or if it's reserved for murder?
A rapist who rationally weighs his options will be less likely to become a rapist in the first place if he thinks rape may lead to his own death. A death penalty for rape would only increase the risk of harm to the child if the rapist behaved irrationally prior to the rape and rationally afterwards.
A number of people are arguing that if child rape and murder are punished equally, rapists will be more likely to commit murder. That may well be true -- but it applies to any case in which the punishments are equal, not just to the death penalty. That is significant because most of the people scoffing at the idea of a death penalty for child rape are against using the death penalty in murder cases, too. Well, if we reduce the penalty for murder to mere life in prison, we have to reduce the penalty for all the crimes (e.g., child rape) that currently get you life in prison. Otherwise we're right back at square one, where the perp might as well kill all the witnesses.
The reason something like this generates revenge fantasies is because it's among the most evil things imaginable.
It is strange to me that so many people today -- folks who probably consider themselves thoughtful individuals -- think there is something bizarre, even *immoral*, about feeling joy at the idea of just punishment. Doing the right thing is supposed to make you feel good, at least if your moral senses aren't totally out of whack.
Rev, duck and deflect my point all you want. (Even by explaining things that I truly believe that you know I don't need explaining).
It still exists. For whatever reasons, you all want to keep intertwined two discussions which are actually better discussed as separate ones. Well, you know, fine.
But that doesn't change anything, not really.
I'm going to try one more time:
My fundamental problem with this thread is NOT with what people are arguing with regard to the proper role of SCOTUS. My fundamental problem with this thread is that, for the most part, people here are arguing with the Supreme Court decision based on what they're positing on its effects with regard to raped children.
And I say that specific part of it, and approach to it, is both emotional and intellectual bullshit.
Have I still failed to make myself clear?
For whatever reasons, you all want to keep intertwined two discussions which are actually better discussed as separate ones. Well, you know, fine. But that doesn't change anything, not really.
It is obvious, reader, that anyone who supports the death penalty for child rapists favors giving the maximum possible penalty to them. So there's nothing to discuss. If you said "right now, rapists only get 7 years in jail", the death penalty supporters would all agree that wasn't nearly good enough.
Maybe you're saying that we need to take positive steps towards increasing rape penalties. Um, yeah. Two points there: (a) making snotty remarks on Blogspot is not a positive step towards increasing rape penalties and (b) for all you know, were ARE working to get rape penalties increased.
So I'm afraid I just don't see what point you're trying to make. That rape penalties are too low is a given. The topic under discussion is whether death was an appropriate and allowable form of punishment.
Have I still failed to make myself clear?
Pretty much. You're angry that we're discussing a subject that interests us instead of the subject you'd prefer us to discuss. Well, tough cookies. There's nothing interesting to say about your preferred topic.
No, sir. Not angry. Resigned, these days, but occasionally moved to comment and even fight for a different POV.
And disgusted--more precisely, disgustedly resigned--that your preferred approached has not done one whit to improve the situation on the ground, where it matters. Because, as you say, there's nothing interesting to discuss about that topic, as there hasn't been. Thanks for making my point better than I ever have, or could have.
I agree with you: tough cookies, indeed.
It is obvious, reader, that anyone who supports the death penalty for child rapists favors giving the maximum possible penalty to them.
No, actually, it isn't.
Trumpit said...
Methadras ,
Those are fighting words....
I didn't know that death row inmates were allowed access to the internet. I'd love to be present for your death by lethal injection. I'd be happy to pull the lever to rid the world of disgusting gutter scum like you. I'll have to rethink my objection to the death penalty. Good thing you are behind bars though in the mean time. What are you going to ask for for your last meal? How about a taco?
Derangement becomes you. I see you've upgraded your pedantic, insanity laced thoughts into even more irrational mentally bloated ravings than usual. Forget the meds today? Didn't get your phallic fix on time? Did he forget to tip?
If you are going to spew more of your clownish 8th grade prison imagery to the rest of us to have to endure reading, then next time just take a walk to a used book store and start in the section where the used up, wrinkly, stuck together homoerotic/romance novels featuring Fabio on the cover are and sharpen up your cyber a little bit better, okay sister? There there sweetie, no need to get your wig, your fishnets, and your strap-on all in a bunch. You'll get better, it just takes some practice to hold back your gag reflex.
Revenant said: As a practical matter, it there is no reason to assume Kennedy and his four allies will consider life in prison without parole (for example) to be an acceptable punishment for child rape either. It is, after all, not "proportional" either, since it exceeds the inconvenience caused to the child.
I'll assume, Revenant, that your last sentence was intended ironically. Ironic or not, I disagree. I work for the court system and recently had occasion to hear the testimony of a woman in her thirties who had been brutally raped and sodomized on repeated occasions when she was six years old. She testified both about that experience and its consequences ever since. There is no question in my mind that she, though theoretically free in the world, was in fact experiencing life in prison without parole. Her attacker, on the other hand, was released after 17 years. Yes, that's a lot, compared to the situations reader_i_am has been accurately describing. But it's disproportionate to the sentence he imposed on his victim.
This thread has probably run its course, but for those people, apparently including Justice K, who cite deterrence: Deterrence is only one philosophical (primarily utilitarian) argument for support of the death penalty. There are other equally valid constructs; ie, retribution. I am a retribution guy myself.
No, actually, it isn't.
??
I'll assume, Revenant, that your last sentence was intended ironically.
It was intended to be representative of the court majority's worldview.
Simon:
Sorry, I've been busy lately, so now I'm answering your 11:54 post from yesterday.
No, I don't consider punishment to be a deterrent, since someone who commits a crime (as I mentioned earlier) generally does not expect to be caught.
That doesn't mean that I oppose incarceration or other forms of correction. Clearly some people need to be removed from contact with the rest of the population (and hopefully given a chance to learn a productive trade and other support to help them do something different when they do get out.)
However, it still isn't a deterrent. Just for example, in the U.S. we lock up a higher percentage of our population than any democracy in the world, and we still have a higher crime rate. Many states are realizing that wholesale incarceration isn't working, as crushing prison costs take a bigger and bigger bite out of state budgets. So states like Texas and Kansas are now experimenting with other forms of correction for non-violent offenders (especially drug offenders.)
No. Why do you think, assuming that you do, that just follows, automatically, practically or even logically?
Rev pretty much got to what I was thinking. In this specific case, if I gamed the system such that I've managed to force behavior A in one situation, and then used behavior A to justify the imposition of behavior B, my power is pretty much limitless.
Same thing could've been done the other way, of course: The court could have mandated the death penalty for rapists, then cited that as a trend for broadening the death penalty.
"Cruel and unusual punishment," said Humpty Dumpty, "means just what I choose it to mean -- no more and no less."
The corruption of that phrase is the biggest charade since the second amendment was twisted to restrict gun rights.
Also, what's with the quote marks around "common"? For that matter--what's with the choice to use the word "common," in that particular sense of the word, in response to what I wrote?
Nothing so offensive as you seem to think. Sexual predation of children is tragically common, and only a small percentage of predators are as brutal as the creature here. At the same time, one hesitates to use the word "common" unqualifiedly.
My point was only that the court could extend itself at any time using the "logic" -- there are those quotes again -- used here.
And you shouldn't take any of this to mean that I am for the death penalty, or even that I approve of the treatment criminals and suspected criminals receive. (And my understanding is that child molesters receive in jail is probably a fate worse than death, often culminating in death.)
I see this as the Court exerting undue influence using the basest sophistry. I don't like to think they're doing it to be popular with Euroweenies (as is suggested here), but the legal basis seems both easily apprehended--and patently false on numerous levels.
I find the whole thing quite horrifying and do what I can "on the ground" as you say. I'm not sure why that disqualifies me from thinking this was a bad decision.
Just for example, in the U.S. we lock up a higher percentage of our population than any democracy in the world, and we still have a higher crime rate.
First of all, as the percentage of the population in prison has increased, our rates of violent crime and property crime have decreased. So at the very least it must be said that our incarceration and crime rates don't rule out a deterrent effect.
Secondly, our rate of "crime" is not, as you claim, higher than any democracy in the world. There are plenty of democracies in central and south America, and even a few in Africa, don't forget. But our rate of *violent* crime is higher than that of Japan or any other democracy with a majority-European population. On the other hand, our rates of property crimes such as burglary and auto theft are lower than those of most of those nations. Our rate of rape is also lower than that of many western democracies. All things considered, you are more likely to be a victim of crime in a place like England, Canada, or the Netherlands than you are here -- but if you are victimized here, it is more likely to involve harm to you.
Finally, the "crime gaps" are moving in a positive direction. For example, our violent crime gap with Canada is narrowing (i.e., it is becoming safer here) while our property crime gap is increasing (your property is increasingly at risk in Canada compared to here).
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