Saturday, January 30, 2016

Child Rape & The Death Penalty

Kennedy, Child Rape, The Death Penalty & the Supremes
Dudley Sharp, 2008

In Kennedy v Louisiana, SCOTUS makes this blunder: “the court rested its condemnation of executing the rapists of children largely on what it described as a trend away from the use of death to punish such crimes both here and abroad.”

Just the opposite is true.

The state laws imposing the death penalty option on child rape cases were relatively new and a number of states were actively considering passing such laws in their states, as well.

In other words, we were seeing a new trend to pass such laws, instead of a trend away from them.

By outlawing such new laws, it was SCOTUS that was, wrongly and intentionally, stopping a new trend. This is a horrible precedent –  SCOTUS was, knowingly, stopping new laws which may become the evolving standard and, quite possibly, preventing a national consensus towards having the death penalty for child rapists.

Is the newest “constitutional” guide for SCOTUS preemptive trend stopping? Maybe.

SCOTUS’ evolving standards doctrine and the national consensus “standards” are both prone to this type of constitutional perversion – the alchemy of highly strained legal arguments derived from personal opinion.

In fact, the national consensus was for the death penalty for child rape cases.

See Jim Lindgren’s, A National Consensus in Favor of the Death Penalty for Child Rapists”
http://volokh.com/posts/1214447764.shtml

And a July, 2008 National Poll

By a 55 – 38 percent margin, voters favor the death penalty for a person convicted of raping a child. Women and men are consistent in their support.  http://www.quinnipiac.edu/x1295.xml?ReleaseID=1194

Another excellent example of this type of phony consensus and evolving standards doctrine improperly used by SCOTUS is this,

A phony ‘consensus’ on youthful killers
by Jeff Jacoby in a Boston Globe op/ed
http://www.boston.com/news/globe/editorial_opinion/oped/articles/2005/03/06/a_phony_consensus_on_youthful_killers/

As a firm adherent to the reality that incentives matter to most people, including criminals, I was concerned that if the sanction options were equal for child rape and child murder that some rapists would be more prone to murder their victims. Therefore, I was not a proponent of the death penalty for child rape.

Juveniles & The Death Penalty

Why Some “Juvenile” Murderers Should Qualify For The Death Penalty:
Brain Science and Other Issues
Dudley Sharp, 10/2/04

There are a number of inadequate issues raised in opposition to 16-17 year old murderers being culpable for the death penalty — Brain science and other arguments are either weak or false.

BRAIN SCIENCE & JUVENILE DEATH PENALTY — NO HOLY GRAIL (1)

“The brain data don't show that adolescents typically have reduced legal culpability for crimes.” Harvard University psychologist Jerome Kagan.

UCLA’s Elizabeth Sowell, another prominent brain-development researcher, takes a dim view of the movement to apply neuroscience to the law. She says that no current research connects specific brain traits of typical teenagers to any mental or behavioral problems.

“The scientific data aren't ready to be used by the judicial system,” she remarks. “The hardest thing [for neuroscientists to do] is to bring brain research into real-life contexts.”

The ambiguities of science don't mix with social and political causes, contends neuroscientist Bradley S. Peterson of the Columbia College of Physicians and Surgeons in New York City. For instance, it’s impossible to say at what age teenagers become biologically mature because the brain continues to develop in crucial ways well into adulthood, he argues.

Such findings underscore the lack of any sharp transition in brain development that signals maturity, according to neuroscientist William T. Greenough of the University of Illinois at Urbana-Champaign. Definitions of adulthood change depending on social circumstances, Greenough points out. Only 200 years ago, Western societies regarded 16-year-olds as adults.

“Brain science offers no simple take-home message about adolescents,” says B.J. Casey of Cornell University’s Weill Medical College in New York City. “It’s amazing how little we know about the developing brain.”

Brain-scanning techniques, including the popular MRI, remain a “crude level of analysis,” Casey notes. What’s more, many critical brain-cell responses are too fast for MRI to track.

Brain data, particularly those on delayed frontal-lobe growth in adolescents, also need to be put in a cultural and historical perspective, Harvard’s Kagan asserts. Frontal-lobe development presumably proceeds at roughly the same pace in teenagers everywhere. Yet current rates of teen violence and murder vary from remarkably low to alarmingly high from country to country, he notes.

“Something about cultural context must be critical here,” Kagan says. “Under the right conditions, 15-year-olds can control their impulses without having fully developed frontal lobes.”

If incomplete brains automatically reduce adolescents’ capacity to restrain their darker urges, “we should be having Columbine incidents every week,” he adds.

Science News summarizes these positions: ” . . .brain science doesn’t belong in court because there’s no evidence linking specific characteristics of teens’ brains to any legally relevant condition, such as impaired moral judgment or an inability to control murderous impulses. ”

AGE, ALONE, CANNOT DICTATE CULPABILITY

No one, including psychiatrists, psychologists and brain specialists, disputes that some 16-17 year olds are as mature, or more mature, than some of those 18 and older. US Supreme Court Justices, Nobel Peace Prize winners, the American Medical Association and the European Union agree.

Therefore, the argument against executing some 16-17 year old murderers is without merit, when it is based upon age, alone.

Is a murderer less culpable solely because they murdered someone one-second, one minute, one week, one month or one year before their 18th birthday? Of course not.

US Supreme Court Justice Sandra Day O’Connor writes:

“Furthermore, granting the premise that adolescents are generally less blameworthy than adults who commit similar crimes, it does not necessarily follow that all 15-year-olds are incapable of the moral culpability that would justify the imposition of capital punishment. Nor is there evidence that 15-year-olds as a class are inherently incapable of being deterred from major crimes by the prospect of the death penalty.” (2)

It is argued that because people have to be older to drink, vote, marry, etc., that it is hypocritical to say that some 16-17 year olds are mature enough to be death eligible for committing capital murder.
 
If society so wished we could individually evaluate 16-17 years olds (just as we do within the criminal justice system) to determine which of those were as mature as 18-21 year olds and allow those to participate in those responsibilities and privileges. No one doubts that many would qualify. Furthermore, there is a major difference between a social privilege and culpability for capital murder.

MacArthur Juvenile Competence Study: “The study did not find differences between juveniles aged 16 and 17 and young adults (18-24) in abilities relevant to their competence to stand trial.” (3)

HUMAN RIGHTS VIOLATION

Those who claim that the death penalty is a human rights violation have failed to make their case.

It is presented that some US states are equal with a number of less democratic nations that execute those who were under age 18 when they committed their murder(s).
 
First, the US criminal justice system is quite different from those nations. Second, as no one disputes that many 16-17 year olds are as mature as some 18-21 year olds, this argument means nothing.

In terms of proportionality, execution cannot be viewed as disproportionately severe in relation to the crime. The innocent murder victim did not earn or deserve their fate, whereas the murderer voluntarily took the lives of the innocent and thereby volunteered for the punishment available within that jurisdiction.

see A phony ‘consensus’ on youthful killers
by Jeff Jacoby in a Boston Globe op/ed
http://www.boston.com/news/globe/editorial_opinion/oped/articles/2005/03/06/a_phony_consensus_on_youthful_killers/

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(1) excerpts from “Teen Brains on Trial”, Bruce Bower, Science News, 5/8/04, vol. 165, No. 19, p.299
http://www.sciencenews.org/articles/20040508/bob9.asp

(2) Thompson v. Oklahoma, 487 U.S. 815 (1988) (USSC) at
www2.law.cornell.edu/cgi-bin/foliocgi.exe/historic/query=[group+487+u!2Es!2E+815!3A]!28[group+edited!3A]!7C[level++case+citation!3A]!29/doc/{@1}/hit_headings/words=4/hits_only?

(3) from Study Summary, ” MacArthur Juvenile Competence Study”,www.mac-adoldev-juvjustice.org/competence%20study%20summary.pdf
Full Study, Results, http://www.mac-adoldev-juvjustice.org/page23.html

 
NOTE: the study was partially funded by the Open Society Institute, one of the Soros Foundations, a product of George Soros, who may be he largest financier of anti death penalty efforts, worldwide.