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Thread: SC Justice Kennedy establishes potentially dangerous new precedent

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    Default SC Justice Kennedy establishes potentially dangerous new precedent

    In the majority opinion of yesterday's ruling banning all executions of persons under the age of 18, Justice Kennedy made reference to a component of their decision being that "the people have already decided". This was obviously a reference to the fact that legislators/voters of 31 states considered the issue of executions of persons under 18 to be inappropriate already by not allowing it in their states. It has been argued by some that the Supreme Court was under a good deal of pressure to go looking for justifications to support their ruling since the Constitution does not support it, and at least the Supreme Court relying on American state laws is more 'American' than relying on European, Canadian and UN precedents which has been a frequent occurrence of late.

    However, it will be extremely interesting to see if this now officially enunciated criteria, i.e. that the votes/positions of the majority of the American people are an important factor in Supreme Court deliberations, will be applied to future cases ...

    - today the Supreme Court is hearing a case regarding the 10 Commandments being displayed on public property - an issue supported by 76% of Americans per a recent USA Today poll

    - the Supreme Court will undoubtedly be hearing a case regarding gay marriage at some point - an issue specifically opposed by over 40 state laws.

    My guess is that the Supreme Court will abandon their own precedent of giving weight to the views of the majority of American voters and/or states just as soon as they don't agree with the result !!!

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    Default Re: SC Justice Kennedy establishes potentially dangerous new precedent

    I sometimes agree with and try to always abide by the Supreme Courts rulings just as every American should,but even the constitution provides solutions to a gov or SC that doesnt speak the voice of the people.

    The bottom line is the power of the people.The majority rules in the game we are playing.
    The SC listens to the heartbeat of the people and makes changes where needed,even changing laws.
    IMO the very voice of the SC is about to change over the next ten years with as many as 3 new singers,some expected sooner then others.

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    Default Re: SC Justice Kennedy establishes potentially dangerous new precedent

    IMO the very voice of the SC is about to change over the next ten years with as many as 3 new singers,some expected sooner then others.
    I'm definitely for some new 'singers' as soon as possible, because the tune they're singing lately leaves much to be desired versus the 'original composition' our founding fathers wrote !

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    Default Re: SC Justice Kennedy establishes potentially dangerous new precedent

    Quote Originally Posted by Melonie
    In the majority opinion of yesterday's ruling banning all executions of persons under the age of 18, ... It has been argued by some that the Supreme Court was under a good deal of pressure to go looking for justifications to support their ruling since the Constitution does not support it, and at least the Supreme Court relying on American state laws is more 'American' than relying on European, Canadian and UN precedents which has been a frequent occurrence of late.
    Actually, I read an article on the decision today which stated that the majortiy opinions did justify their position by refering to U.N. resolutions.

    My guess is that the Supreme Court will abandon their own precedent of giving weight to the views of the majority of American voters and/or states just as soon as they don't agree with the result !!!
    I'm guessing that when Roe v. Wade was decided a large majority of states had laws either banning or greatly restricting abortions. The supreme court went on to rule on that case based on the constitution, which seems to be a novel idea for the current court. Funny I always thought that the legislative branch was where they took things like peoples opinions into consideration. Guess I missed the lesson on the supreme court taking opinion polls to decide legal matters. I have no desire to see large numbers of minors executed. However, the basis of this decision is what I'm troubled by.
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    Default Re: SC Justice Kennedy establishes potentially dangerous new precedent

    In 1988, the Supreme Court ruled that under-16 years olds could not be executed. So only
    16 and 17 year olds were still executable. That includes the Washington sniper, Lee Boyd Malvo,
    who was 17 when he murdered or helped murder 10 people.

    Kennedy, the pivotal swing vote in the case, noted that since 1990, only seven other countries -- including Iran, Saudi Arabia, and China -- have executed juvenile offenders, and all have since disavowed the practice.

    Kennedy also noted that every nation except the United States and Somalia has ratified the United Nations Convention on the Rights of the Child, which has a provision forbidding the juvenile death penalty. Somalia does not have a functioning government.

    ''It is fair to say that the United States now stands alone in a world that has turned its face against the juvenile death penalty," Kennedy wrote, arguing that it was ''proper that we acknowledge the overwhelming weight of international opinion" against the American stance.

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    Default Re: SC Justice Kennedy establishes potentially dangerous new precedent

    Kennedy wrote, arguing that it was ''proper that we acknowledge the overwhelming weight of international opinion" against the American stance.
    This statement of course cuts right to the heart of the matter. It is arguable that Justice Kennedy and others wish to promote a particular agenda, therefore they desire to rule in certain ways on certain issues. However, as Justice Scalia and others point out, the duty of the US Supreme Court is to interpret the US constitution. In several recent cases, when Justice Kennedy and others wished to rule in a certain way on a number of issues along the lines of a particular agenda, they had great difficulty finding any substance in the US constitution which would actually allow them to do so! Thus in several recent cases, Justice Kennedy and others went 'shopping' around the world for legal precedents which would support the decision they wished to issue. Justice Scalia points out that nowhere in the US constitution is it mentioned that the opinion of the rest of the world's courts should carry any weight in supreme court decisions on US domestic issues.

    Justices Scalia and Breyer addressed the foreign law issue recently on C-Span. Following are some quotes from that debate (sorry to use a partisan source, but I couldn't find any quotes from the debate from mainstream media sources) ...

    (snip)
    RUSH:And incredibly enough, there was a debate last night on C-SPAN between one of the two most brilliant people on the Supreme Court, Justice Antonin Scalia. A man who I've always said if I didn't have my brain, I'd like to have his. And Stephen Breyer, one of the libs on the court. It was called, "The Relevance of Foreign Law." Michael Rosenfeld, president of the US association on constitutional law, said, (paraphrasing) "Justice Scalia, you said that 60 years ago originalism was basically not abandoned, but at least is less important in decisions today." That means original intent. "And I think every justice has to deal with the issue of precedent. In the Supreme Court, precedent is not binding in the sense that your court can overall its own precedents. So the question is this: Let me ask the following hypothetical. Suppose your court had never had any jurisprudence on abortion and all of the abortion jurisprudence, including your own opinions, were by Canadian judges. Would there be any interest, would there be any point in reading that and looking at it as well-reasoned, not well-reasoned, helpful or not helpful, in developing doctrine?"

    JUSTICE SCALIA: I wouldn't look to Canadian law. I look at the text. It says nothing about it. And I look at 200 years of history. Nobody ever thought it said anything about it. That's the end of the question for me. What good would reading Canadian opinions do unless it was my job to be the moral arbiter, which I don't regard it as. I regard the constitution as having set a floor to American society. That floor says nothing about abortion. It's not the job of the Constitution to change things by judicial decree. Change is brought about by democracy. Abortion has been prohibited. You want to change that? American society think that's a terrible result? Fine. Persuade each other about that. Pass a law and eliminate the laws against abortion. I have no problem with change. It's just that I do not regard the Constitution as being the instrument of change. By letting judges read Canadian cases and saying, "Yeah, it would be a good idea not to have any restrictions on abortion." That's not the way we do things in a democracy. Persuade your fellow citizens and repeal the laws. Why should the Supreme Court decide that question?

    RUSH: Amen! I love this guy. I absolutely love this guy. The court has assumed power it was never granted in the Constitution. One of the primary themes of Mark Levin's upcoming book, "Men In Black," and here is Scalia laying it out perfectly. Abortion is not for us. We're not here to decide that. We're not here to take over the democratic process from people. The American people's elected representatives make the law in this country. We don't make the law is what he's saying. But this is not the view of Stephen Breyer, who you will hear in a moment. In this next bite, Scalia explains why we shouldn't use foreign court rulings in interpreting our Constitution, and he does so brilliantly. Listen.

    JUSTICE SCALIA: We are one of only six countries in the world that allows abortion on demand at any time prior to viability. Should we change that because other countries feel differently? Or maybe a more pertinent question: Why haven't we changed that if, indeed, the court thinks we should use foreign law? Or do we just use foreign law selectively? When it agrees with what the justice would like the case to say, you use the foreign law, and when it doesn't agree, you don't use it. Thus, you know, we cited it in Lawrence, the case on homosexual sodomy. We cited foreign law. Not all foreign law. Just the foreign law of countries that agreed with the disposition of the case. But we said not a whisper about foreign law in the series of abortion cases. What's going on here? Do you want it to be authoritative? I doubt whether anybody would say "Yes, we want to be governed by the views of foreigners." Well, if you don't want it to be authoritative, then what is the criterion for citing it or not? That it agrees with you? I don't know any other criterion to bring forward.

    RUSH: I take you back to a recent broadcast in which I said the left, in order to keep getting what it wants, is going to need a new constituency, a new populace. They have failed in their efforts to persuade the American people that their ideas deserve legislative victory. The left is losing elections. The left doesn't win in the Congress or the Senate, and so they are now resorting to outside sources. In the case of the war in Iraq, the French and the Germans and in the case of abortion or any other law that comes before the court the liberals want to take, want to accept, they'll go wherever they can in the world to find anybody that agrees with them, since the American people don't. And they will then use foreign authority. So Scalia is saying, well, wait a minute. If you're going to do that, you know, we're one of only six nations that have unfettered abortion anytime you want it up until viability. But most of the world doesn't. If we're going to cite foreign law, why don't we have the same proscriptions against abortion as the rest of the world does? Because the left is selective and they're not interested in the democratic process and they're not interested in the rule of the majority. They're interested in their own rule, their own decisions taking place and triumphing wherever they have to go to get it. And you will pretty much hear Stephen Breyer, Scalia's debate partner on C-SPAN last night admit this when we come back and get into a couple of bites from him.

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    Default Re: SC Justice Kennedy establishes potentially dangerous new precedent

    Breyer's reply ...

    BREAK TRANSCRIPT
    You just heard Justice Scalia refer to the Texas sodomy case, and as a prelude to the bites coming up here by Stephen Breyer, it does serve to remind you that, you know, we don't prosecute sodomy in this country. There was an old law on the books in Texas, somebody filed suit, it found its way to the court because the liberals on the court wanted to take it. And to decide it, they cited foreign law. They cited foreign law. And one of the red flags was what the hell is this? The US Constitution is the authority and that's what Scalia is saying. But Stephen Breyer, one of the liberals on the court in this debate last night on C-SPAN with Antonin Scalia tried to make the case and wait till you hear it. Wait till you hear his reasoning and compare his reasoning to Scalia's as to why seeking authority from foreign countries, cultures and governments is okay. Here's what he said.

    JUSTICE BREYER: I wrote a dissent which you thought was totally wrong, and it was in from a denial of cert and the question was this: Is it a cruel and unusual punishment to keep a person on death row for more than 20 years before executing them? And I wrote an opinion that suggested a dissent, that I thought this was quite likely, quite possibly would be -- the answer to that question would be yes. That cruel and unusual punishment. Now, where do I look? You say oh, I should look to myself. If I look to myself, I might be able to get an answer much faster. Let's say I don't look to myself. I mean, can I jump out of my own skin? No. No human being can. But let's see what's around. And of course I wrote this thing not too convincing, but I found opinions in the privy council in England where they had upset Jamaica.

    JUSTICE SCALIA: Reversing an earlier one of their own cases.

    JUSTICE BREYER: Right. Correct.

    JUSTICE SCALIA: So they don't even pay attention to their own opinions.

    RUSH: That was Scalia. So they reversed their case. He cited a case that the English ended up reversing. Breyer did. Over the fact that it's cruel and inhumane to keep somebody on death row for more than 20 years before executing them. Wait a minute. Who's caused this? If I may just take a brief political departure? Who's caused this? Who's responsible for 14 years, on average, of delays and stays when it comes to convicting the executed, or convicting the guilty of capital crimes in this country? It's the very liberals that were represented here by Stephen Breyer.

    So Breyer said, "Well I can't look to myself." Why not? That's what most of the rest of you liberal judges do. Why not look to yourself? So since he couldn't look at himself, he went trolling. He went trolling all over the world, looking for someplace to back up his opinion. Admitting his dissent was not very good and so forth and so on. You just heard, this is a man -- this is a lawyer -- you just heard a judge telling you how he rules on cases. A liberal judge. You didn't hear one thing about the law. You didn't hear one thing about the Constitution. You heard about how he could find someplace around the world to validate what he thought. When you listen to Scalia, you hear somebody concerned about the law, the authority of the Constitution. What was the original intent? Pure and simple. Not legislation. Not the democratic process. Not majority rule. What's the law? What's the Constitution say on this? That's our final authority. But it doesn't satisfy the left. The Constitution doesn't grant them what they want. They have to invent it, and if they can't get away with inventing it, they'll go find it in some far-flung corner of the world. We have another bite here. Breyer going on to discuss all the great rulings he found in Canada, the United Nations, India and Zimbabwe.

    JUSTICE BREYER: India, they've written a pretty good opinion. There was one in Canada. The UN had discussions on this. And they weren't all one way and I cited things the other way, too. Anything I could find. And then I think I may have made what I call a tactical error in citing a case from Zimbabwe, not the human rights capital of the world, but it was at an earlier time, Judge Gubbay was a very good judge so I'd written this, and of course I looked -- I don't think that's controlling. But I'm thinking, well, on this kind of an issue, you're asking a human question, and the Americans are human, and so is everybody else, and I don't know, it doesn't determine it. But it's an effort to reach out beyond myself to see how other people have done. Though it does not control.

    RUSH: It did control. It controlled your opinion, Judge Breyer. It ended up shaping your opinion. You went trolling for something that you could find any -- Zimbabwe -- around the world that agreed with what you thought, based not on the law, but based on what's human. You know, the court doesn't allow cameras. The Supreme Court never allows cameras, so all we get are, you know, print journalists and TV, electronic reporters telling us what goes on in an oral argument. We don't get to see debates like this and last night there was one on C-SPAN. Scalia ought to be out there far more often. I know it's a hassle and I know they have to have limits on this themselves, but folks, with these four bites, there's no greater evidence and illustration of the difference between a conservative judge and a liberal judge when it comes to who looks to the law and who looks to all these outside sources that can validate what the liberal judge feels or what the liberal judge thinks. It's just shocking. And these people are appointed for life. And half the questions the Supreme Court takes today are questions that ought to be decided in the US Congress. But for one reason or another, US Congress doesn't have the guts or in some cases, the US Supreme Court asserts its power and says we're the final authority on the Constitution, we're going to take it, we're going to rule. And then when they don't find on the left what they want in the Constitution, they go elsewhere. There is a way around this. That's what Mark Levin's book is all about, after chronicling many, many more such problems as this.

    END TRANSCRIPT

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    Default Re: SC Justice Kennedy establishes potentially dangerous new precedent

    not to belabor the point, but the weekend opinion pieces are coming out ...

    "Five Justices Shred Constitution To Protect Cold-Blooded Killers"

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    Default Re: SC Justice Kennedy establishes potentially dangerous new precedent

    Quote Originally Posted by Melonie
    not to belabor the point, but the weekend opinion pieces are coming out ...
    Mel....you are one indefatigable force!

    That said....I have some suggestions on where to look for learned opinions to support your agenda regarding this topic.

    THE FRIGIN SC DECISION! Scalia wrote a fine dissenting opinion. Misguided as hell, but it IS a part of the historical, learned, official record on this issue. Interviews and opinions of from bought and paid for spin pro's is a weak source.

    http://laws.findlaw.com/us/000/03-633.html
    ROPER, SUPERINTENDENT, POTOSI CORRECTIONAL CENTER v. SIMMONS

    I'm not sure quite why the mainstream media hides references to the actual opinions, but they do.

    Calling this decision "shredding the constitution" is laughably misguided, and I have no doubt Antonin Scalia would agree.

    The eigth amendment to the Constitution contains the key phrase at issue here:

    Cruel and Unusual Punishment

    Take a long look at this, and the wisdom of its authors will be clear. These are subjective terms. They must be defined in the context of our society's contemporary mores. They are also explicitly under the domain of the Supreme Court for interpretation. The proper debate is for the Court to define these mores. Such was the burden the Constitution framers bestowed upon them. This is a quintisential example of the complete folly of a blanket "strict constructionist" argument. The original intent of the framers could not possibly be more clear: to bestow the power to define for all states the limits of acceptable human punishment, on the Supreme Court.

    The "strict constructionist" smoke screen dissipates under illumination, revealing the strident hidden agenda of unrepentant vengeance.

    "VENGEANCE IS MINE”, sayeth the Lord. (Leviticus 19:1)

    What frigin bible is the "religious" right reading?

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    Default Re: SC Justice Kennedy establishes potentially dangerous new precedent

    Quote Originally Posted by Melonie
    Quote:
    Kennedy wrote, arguing that it was ''proper that we acknowledge the overwhelming weight of international opinion" against the American stance.


    This statement of course cuts right to the heart of the matter.
    This is a flagrant, out of context misquote. Here is the actual text from the opinion:

    It is proper that we acknowledge the overwhelming weight of international opinion against the juvenile death penalty, resting in large part on the understanding that the instability and emotional imbalance of young people may often be a factor in the crime. See Brief for Human Rights Committee of the Bar of England and Wales
    et al. as Amici Curiae 10-11. The opinion of the world community, while not controlling our outcome, does provide respected and significant confirmation for our own conclusions.
    Kennedy repeatedly makes the point that this "international" factor is a minor confirmation, and not a controlling, nor even contributory element of the Court's opinion.

    I have no doubt that your selective citation of this phrase, and belabored misinterpretation would have been prevented by reading the Court's actual opinion first, not some obese radio blowhard's.

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    Default Re: SC Justice Kennedy establishes potentially dangerous new precedent

    Quote Originally Posted by stant
    I have no doubt that your selective citation of this phrase, and belabored misinterpretation would have been prevented by reading the Court's actual opinion first, not some obese radio blowhard's.
    Actually he is not really obese anymore.

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    Default Re: SC Justice Kennedy establishes potentially dangerous new precedent

    Quote Originally Posted by stant
    ...Here is the actual text from the opinion:
    It is proper that we acknowledge the overwhelming weight of international opinion against the juvenile death penalty,
    No, it's not proper. The role of the U.S. Supreme Court is to interpret the U.S. Consitution.
    resting in large part on the understanding that the instability and emotional imbalance of young people may often be a factor in the crime. See Brief for Human Rights Committee of the Bar of England and Wales
    et al. as Amici Curiae 10-11.
    Okay, but yet those same minors do possess the emotional balance and stability to decide for themselves whether or not to carry a pregnancy to term? And what exactly is this magical event that happens on the 18th anniversary of a person's birth that suddenly empowers them with the emotional stability and balance to be held responsible for thier actions? Do I want to see large numbers of minors executed? Of course not. But is Justice Kennedy arguing that every single seventeen year old in the country lacks the emotional balance and stability to be reasonably held accountable for their actions?
    The opinion of the world community, while not controlling our outcome, does provide respected and significant confirmation for our own conclusions.
    That's what I object to. Justice Kennedy and the other liberal judges decided what they wanted to outcome to be, then went out and looked for some kind of "justification" for their own conclusions. That's not adjudication, that's legislation.
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    Default Re: SC Justice Kennedy establishes potentially dangerous new precedent

    Quote Originally Posted by Destiny
    No, it's not proper. The role of the U.S. Supreme Court is to interpret the U.S. Consitution.

    The Constitution prohibits cruel and unusual punishment. Propose a methodology for interpreting this clause that doesn't involve a judgement of contemporary societal mores, and I'm all ears. At the signing of the Constitution, it was legal to execute 7 year olds. Yes one could execute an seven year old child by hanging or firing squad. This standard has evolved over the two hundred and change years since then precisely as the orginal framers intended. Take a look at the full opinion.

    All nine members of the Court agree that a consensus of societal decency standards is an important component of a meaningful interpretation of this clause. Kennedy and his group say 18 and over: OK to kill. Sandy says no consensus yet on that, and she prefers her standards on the warm and fuzzy side, but otherwise agrees. The right-wing nut-job trio Scalia, Renky, and Thomas say its too soon to revisit this issue, no consensus yet, 2 + 2 = 13, and the other members of the Court are weenie asshats. (Scalia is getting really punchy these days....)


    Okay, but yet those same minors do possess the emotional balance and stability to decide for themselves whether or not to carry a pregnancy to term? And what exactly is this magical event that happens on the 18th anniversary of a person's birth that suddenly empowers them with the emotional stability and balance to be held responsible for thier actions? Do I want to see large numbers of minors executed? Of course not. But is Justice Kennedy arguing that every single seventeen year old in the country lacks the emotional balance and stability to be reasonably held accountable for their actions? That's what I object to.
    This is a good argument. I agree with you. Bright lines such as this strip the humananity out of the individual decision on whether to take someone's life. Sandy O'Connor bases her dissent of the decision in part similar grounds. She authored a major modification of the Roe v. Wade trimester delineation on analagous reasoning (the Casey decision, i.e. fetus viability is a moving target).

    The complete answer to your question is addressed in lengthy detail in the Court opinion. Here is a brief excerpt to give you a flavor for the Court's reasoning:




    Drawing the line at 18 years of age is subject, of course, to the objections always raised against categorical rules. The qualities that distinguish juveniles from adults do not disappear when an individual turns 18. By the same token, some under 18 have already attained a level of maturity some adults will never reach. For the reasons we have discussed, however, a line must be drawn. The plurality opinion in Thompson drew the line at 16. In the intervening years the Thompson plurality's conclusion that offenders under 16 may not be executed has not been challenged. The logic of Thompson extends to those who are under 18. The age of 18 is the point where society draws the line for many purposes between childhood and adulthood. It is, we conclude, the age at which the line for death eligibility ought to rest.




    Roper v. Simmons, 112 S. W. 3d 397





    Justice Kennedy and the other liberal judges ...
    When in doubt, affix label.....only...

    Justice Kennedy is a Republican, and was appointed by President Reagan. As for that matter, so is Justice Souter, appointed by George Bush Sr. Justice Stevens, also a Republican, was appointed by president Ford. All three of them voted to limit capital punishment to adults. Of the 9 Supreme Court members, only 2 are Democrats. Breyer and Ginsburg, are both considered moderates by Supreme Court historians.

    Stevens is generally considered the sole liberal on the Court. Guess he grew a conscience once he had the security of a lifetime appointment and no longer needed to cowtow to the interests of corporate evil doers funding the Republican machine.

    [the "liberal" justices] decided what they wanted to outcome to be, then went out and looked for some kind of "justification" for their own conclusions. That's not adjudication, that's legislation.
    Warning: repeating the mantra "adjudication, not legislation" over and over can cause some conservatives to have an ejaculation...some of them, for the first time in years.

    Seriously, interpreting the phrase "cruel and unusual punishment" was not taken lightly by this Court, and never has been. Take a look at the full opinion (link below) for a full recitation of the reasoning behind the decision. The opinion of the Court is far more well thought out and considered than is possible to compress into a sound bite.


    http://laws.findlaw.com/us/000/03-633.html
    ROPER, SUPERINTENDENT, POTOSI CORRECTIONAL CENTER v. SIMMONS
    Last edited by stant; 03-08-2005 at 04:24 AM. Reason: OK to snuff 7 year olds in the good old days.

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    Default Re: SC Justice Kennedy establishes potentially dangerous new precedent

    Uh.. the phrase is cruel AND unusual punishment... the 8th Amendment prevents punishments
    inflicted that satisfy BOTH conditions, not (arguablly) just one. It derives from the English
    Declaration of Rights of 1689 which had no notion of 'proportionality'. See for
    example, Harmelin v. Michigan (1991) for a recent case. Or Rummel v. Estelle (1980) in which
    the Supreme Court upheld a three-strikes life sentence for a $120 crime... or Hutto v. Davis
    (1982) a 40 year sentence for the sale and distribution of $200 of marijuana.

    But let's assume that proportionality is essential. After all, the Bible (Old Testament)
    (quoted by stant.. Deuteronomy 32:35) actually argues for proportionality. What's more
    proportional than "an eye for an eye"?
    In context, not necessarily lex talionis (law of retalitation), but a limitation on revengeful justice
    calling for fair compensation (not maiming, lest we all want to be blind and thoothless, but we
    don't want to be overcome by evil either).
    “Life shall go for life, eye for eye, tooth for tooth” (Deuteronomy 19:21) or Leviticus 24:17, "And
    he that killeth any man shall surely be put to death... breach for breach, eye for eye, thooth for
    thooth..." or Exodus (21:23) (part of the Torah):
    "Thou shalt give life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burning
    for burning, wound for wound..."
    The Torah is saying, "Do not take a ransom for the life of a Murderer, who is wicked to the extent that he must die". In other words, for the murderer, there is no monetary amount that is sufficient to grant him atonement in the eyes of God, and only payment with his life will secure that atonement.

    But I prefer Gilbert & Sullivan...("The Mikado, Or, The Town of Titipu", Act II, song 17):
    "The object all sublime... to let the punishment fit the crime."

    Now what's really 'cruel' is what happened to the victims (all but forgotten) of killers like Lee
    Boyd Malvo. So I find it very proportional that the killers get a proportional penalty for their
    crimes: death.

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    Veteran Member stant's Avatar
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    Default Re: SC Justice Kennedy establishes potentially dangerous new precedent

    Damn Myssi.

    Awesome.

    That was the first and last time I shall quote Leviticus.

    I agree this sort of analysis by you is definately relavent to in part interpreting this clause in the Constitution. Except for that first amendment "establish no religion" problem of course.

    Regardless, such biblical edicts and scripture guidance are relevant to many contemporary faithful, and so from the perspective of a societal more should play a role in interpreting "cruel and unusual". Your examples of mismatched punishments stemming from brain dead mandatory sentencing rules are in fact a MUCH bigger issue than some handful of 17 year old demon seed that get offed. This is why I lean towards Sandy O'Connor's desire to keep some flexibility in the law for judges and juries.

    Both Kennedy and O'Connor did talk about proportionality in the decision. Take a look.

    My beef here was with the claim that the Supreme Court had no authority to make the sort of interpretation they did. The eighth amendment is a special case that needs such an analysis.

    My personal opinion is that offing bad guys is perfectly OK, even demon seed perhaps. My problem with capital punishment is that I fundamentally misstrust the government, and allowing them to kill citizens through some sanctioned mechanism is perhaps a bit too much power to extend to them. Fortunately the penal system has a clean record for never offing an innocent person...
    Last edited by stant; 03-08-2005 at 10:47 AM.

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    Veteran Member myssi's Avatar
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    Default Re: SC Justice Kennedy establishes potentially dangerous new precedent

    Yeah... fortunately (not!!)..I know, better to let 1000 guilty go free rather than one innocent
    person be unjustly punished...
    Anyway, I guess we are pretty much in agreement. I don't usually quote the Bible/Torah either...
    but you started that.
    Personally, if I ever got my hands on a child molester or animal abuser all proportionality would
    be irrelevant compared to what I would do.
    Proportionality is sometimes an impossible task... how do you punish a blind person for
    poking someone's eye out...is that what's meant by Justice being blind?...or a thoothless person for knocking out a thooth, etc.

    I would prefer more objectivity in the law, rather than subjective contemporary interpretation
    if possible. But the times, they are a changing...

    Another thing I want to know... if liberals are so concerned with proportionality, why not
    try to abolish all punitive damages in civil suits? By definition these are designed to punish above
    and beyond actual fair compensation.

    Thanks, stant.

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    Veteran Member stant's Avatar
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    Default Re: SC Justice Kennedy establishes potentially dangerous new precedent

    Quote Originally Posted by myssi

    Another thing I want to know... if liberals are so concerned with proportionality, why not
    try to abolish all punitive damages in civil suits? By definition these are designed to punish above
    and beyond actual fair compensation.
    Punitive damages are all about proportionality. Punish the evil doer only to the extent they will feel a significant enough sting so as not to repeat their despicable behavior. No more, no less. If you drive drunk, but do not hit anyone, why should you be arrested? Because it is willfull, dangerous behavior that has a great potential for harm. The civil courts need a similar detterance against willfully bad acts. Hence the need for punitive damages.

    The solution to minimizing the percieved impact punitive damage awards is simple. Stop doing the evil crap that warrants them. Of course this is the actual impact as well. Punitive damages actually save money for the general public, just like drunk driving laws.

    Another topic entirely of course.....but I just couldn't leave your inquiry unanswered.

  18. #18
    Jay Zeno
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    Default Re: SC Justice Kennedy establishes potentially dangerous new precedent

    Well, to distill it, it seems to me that the standard "cruel and unusual" is an evolving definition. The U.S. Supreme Court does have the authority to establish that definition in current terms. 20 years from now, the Supremes may change their minds to raise the age limit even more, or to lower it again, or to abolish the death penalty altogether, only to be raised again in 20 years after that.

    So it goes.

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    Featured Member discretedancer's Avatar
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    Default Re: SC Justice Kennedy establishes potentially dangerous new precedent

    JZ that is true, though I heard somewhere (need to pull out my copy of Constitution) the court was NOT set up as final arbitor of constitutional law...that the constitution either left that open or gave it to legislature.

    Supreme court started taking that role in Jefferson's term - far enough back for me (especially because sitting president knew the desires behind founding fathers rather directly).

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    Featured Member Destiny's Avatar
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    Default Re: SC Justice Kennedy establishes potentially dangerous new precedent

    Quote Originally Posted by stant
    [/b]
    The Constitution prohibits cruel and unusual punishment....
    First, you mischaracterized my quote. Here's my quote:

    Originally Posted by stant

    ...Here is the actual text from the opinion:
    It is proper that we acknowledge the overwhelming weight of international opinion against the juvenile death penalty,

    No, it's not proper. The role of the U.S. Supreme Court is to interpret the U.S. Consitution.

    My statement did not concern the death penalty specifically, it was about the supreme court using "international opinion" in determining the constitutionality of laws. Second, this this entire thread is not about the death penalty specifically. This thread asks, "is it proper for the U.S. Supreme Court to consider international opinion in deciding if laws and court decisions are in compliance with the U.S. Constitution?" If you want to debate whether the death penalty is "cruel and unusual" or not, start a new thread.

    All nine members of the Court agree...The right-wing nut-job trio Scalia, Renky, and Thomas say its too soon to revisit this issue, no consensus yet, 2 + 2 = 13, and the other members of the Court are weenie asshats. (Scalia is getting really punchy these days....)
    Now who's affixing labels?

    This is a good argument...Drawing the line at 18 years of age is subject, of course, to the objections always raised against categorical rules. The qualities that distinguish juveniles from adults do not disappear when an individual turns 18. By the same token, some under 18 have already attained a level of maturity some adults will never reach. For the reasons we have discussed, however, a line must be drawn. The plurality opinion in Thompson drew the line at 16. In the intervening years the Thompson plurality's conclusion that offenders under 16 may not be executed has not been challenged. The logic of Thompson extends to those who are under 18. The age of 18 is the point where society draws the line for many purposes between childhood and adulthood. It is, we conclude, the age at which the line for death eligibility ought to rest.
    That's the problem I have with the decision. It's too inflexible. From the decision I read:
    During closing arguments, both the prosecutor and defense counsel addressed Simmons' age, which the trial judge had instructed the jurors they could consider as a mitigating factor.
    To me that is the proper way to handle these types of cases. Rather than have a hard and fast rule, let the jury decide. In every post I've made in this thread I think I have stated that I have no desire to see huge numbers of minors executed. However, I am also not willing to state that there is not a single seventeen year old in the country that does not deserve the death peanalty. One person overlooked in this case is the victim, Mrs. Shirley Crook. From the court's opinion:

    Simmons said he wanted to murder someone. In chilling, callous terms he talked about his plan, discussing it for the most part with two friends, Charles Benjamin and John Tessmer, then aged 15 and 16 respectively. Simmons proposed to commit burglary and murder by breaking and entering, tying up a victim, and throwing the victim off a bridge. Simmons assured his friends they could "get away with it" because they were minors.
    ...Simmons and Benjamin entered the home of the victim, Shirley Crook, after reaching through an open window and unlocking the back door. Simmons turned on a hallway light. Awakened, Mrs. Crook called out, "Who's there?" In response Simmons entered Mrs. Crook's bedroom, where he recognized her from a previous car accident involving them both. Simmons later admitted this confirmed his resolve to murder her.

    Using duct tape to cover her eyes and mouth and bind her hands, the two perpetrators put Mrs. Crook in her minivan and drove to a state park. They reinforced the bindings, covered her head with a towel, and walked her to a railroad trestle spanning the Meramec River. There they tied her hands and feet together with electrical wire, wrapped her whole face in duct tape and threw her from the bridge, drowning her in the waters below.

    Hmm...clearly this guy seemed to have a pretty good understanding of the law. It sure doesn't sound like he lacks the ability to understand the seriousness of his actions, just that he underestimated what the severity of what the punishment might be.

    When in doubt, affix label.....only...

    Justice Kennedy is a Republican, and was appointed by President Reagan. As for that matter, so is Justice Souter, appointed by George Bush Sr. Justice Stevens, also a Republican, was appointed by president Ford. All three of them voted to limit capital punishment to adults. Of the 9 Supreme Court members, only 2 are Democrats. Breyer and Ginsburg, are both considered moderates by Supreme Court historians.
    I label judges by their opinions, not by who appointed them. A Justice that seeks to impose his own opinions on society or who looks to "international opinions" to justify his decision is "liberal". A Justice who looks soley to the Constitution and precedents is "conservative".
    Seriously, interpreting the phrase "cruel and unusual punishment" was not taken lightly by this Court, and never has been. Take a look at the full opinion (link below) for a full recitation of the reasoning behind the decision. The opinion of the Court is far more well thought out and considered than is possible to compress into a sound bite.

    http://laws.findlaw.com/us/000/03-633.html
    ROPER, SUPERINTENDENT, POTOSI CORRECTIONAL CENTER v. SIMMONS
    Okay, I did. Justice Kennedy's opinion states that world opinion is not, "controlling, for the task of interpreting the Eighth Amendment". Then goes on for six paragraphs describing how world opinion is in his favor. From the court's opinion:

    As respondent and a number of amici emphasize, Article 37 of the United Nations Convention on the Rights of the Child, which every country in the world has ratified save for the United States and Somalia, contains an express prohibition on capital punishment for crimes committed by juveniles under 18.

    The U.S. Senate has never ratified the UN Convention on the Rights of the Child. Yet the Supreme Court attempts to enforce its provisions on the country despite this fact. If that's not judicial legislation, I don't know what is.
    Dancing is wonderful training for girls, it's the first way you learn to guess what a man is going to do before he does it. ~Christopher Morley, Kitty Foyle

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    Veteran Member myssi's Avatar
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    Default Re: SC Justice Kennedy establishes potentially dangerous new precedent

    I think what discretedancer is refering to is the 1803 Supreme Court ruling in Marbury v.
    Madison. The case involved whether a writ of mandamus (an order to force an action)
    should be issued to order that William Marbury (an appointee of President John Adams at
    the end of his administration) should get his commission for the position of Justice of the Peace.

    In the Presidential election of 1800, Thomas Jefferson defeated John Adams, becoming the third U.S. President. Although the election was decided on February 17, 1801, Jefferson did not take office until March 4, 1801. Until that time, Adams and the Federalist-controlled U.S. Congress were still in power. Congress passed a new Judiciary Act, creating a number of new courts to be controlled by Federalists.

    On March 2, Adams appointed 42 Federalists to these courts while sitting as a lame duck less than a week before the end of his term. The following day, on March 3, the judges were approved by the Senate. One of these "Midnight Judges" was William Marbury, appointed to a position as Justice of the Peace in the District of Columbia. At noon, Adams left office and Jefferson was inaugurated as President.

    Marbury's commission, as well as that of others who were part of the lawsuit, was signed by Adams and John Marshall, his Secretary of State. As a complication of matters, Marshall had been appointed as Chief Justice of the Supreme Court on February 4, but had continued to act as Secretary of State until Jefferson was inaugurated. On March 3, Marshall became Chief Justice, and swore in Jefferson.

    Jefferson treated as void the 42 commissions approved on Inauguration Day, including Marbury's, because they had not been officially delivered by day's end. He appointed James Madison as the new Secretary, and ordered him not to deliver the Marbury commission.

    The Supreme Court, under the new Chief Justice John Marshall,
    in essence, declared that Madison should have delivered the commission to Marbury, but also held that the section of the Judiciary Act of 1789 that gave the Supreme Court the power to issue writs of mandamus exceeded the authority allotted the Court under Article III of the Constitution, and was therefore null and void.

    The critical importance of Marbury is the assumption of several powers by the Supreme Court. One was the authority to declare acts of Congress, and by implication acts of the president, unconstitutional if they exceeded the powers granted by the Constitution. But even more important, the Court became the arbiter of the Constitution, the final authority on what the document meant. As such, the Supreme Court became in fact as well as in theory an equal partner in government, and it has played that role ever since. This newly determined power
    of "judicial review" was not used again until 1857 in Dred Scott v. Sandford.

    Here's part of the decision in Marbury v. Madison:
    "It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.

    So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.

    If, then, the courts are to regard the constitution, and the constitution is superior to any ordinary act of the legislature, the constitution, and not such ordinary act, must govern the case to which they both apply...

    Why does a Judge swear to discharge his duties agreeably the constitution of the United States, if that constitution forms no rule for his government? If it is closed upon him, and cannot be inspected by him?

    ...the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void; and that courts, as well as other departments, are bound by that instrument."

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    Veteran Member stant's Avatar
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    Default Re: SC Justice Kennedy establishes potentially dangerous new precedent

    Quote Originally Posted by discretedancer
    JZ that is true, though I heard somewhere (need to pull out my copy of Constitution) the court was NOT set up as final arbitor of constitutional law...that the constitution either left that open or gave it to legislature.

    Supreme court started taking that role in Jefferson's term - far enough back for me (especially because sitting president knew the desires behind founding fathers rather directly).
    US Constitution, Article 3. Section 1. (establishment of SC) and 2. (powers)

    http://caselaw.lp.findlaw.com/data/c...ion/article03/

    Quote Originally Posted by Destiny
    No, it's not proper. The role of the U.S. Supreme Court is to interpret the U.S. Consitution.

    My statement did not concern the death penalty specifically, it was about the supreme court using "international opinion" in determining the constitutionality of laws. Second, this this entire thread is not about the death penalty specifically. This thread asks, "is it proper for the U.S. Supreme Court to consider international opinion in deciding if laws and court decisions are in compliance with the U.S. Constitution?" If you want to debate whether the death penalty is "cruel and unusual" or not, start a new thread.
    OK, maybe we had some sort of a disconnect, but Melanie's original post was in regards to how the SC (via an opinion authored by Kennedy) committed some outrageous new precedent in it's ruling on the death penalty. This ruling hinges entirely on the interpretation of Eighth Amendment, specifically, the "cruel and unusual" clause.

    UC Constitution: Eighth Amendment

    Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

    For a detailed annotated reference, see:
    http://caselaw.lp.findlaw.com/data/c...n/amendment08/

    Whether or not it is appropriate to consider domestic public opinion or international opinions or thought in making such an interpretation was the issue Melanie originally laid out.

    ALL NINE Justices agree that a consensus of domestic opinion of societal standards of decency is an appropriate component in interpreting this clause. Six of the Justices agree that international values play some role, even if only as confirming an opinion arrrived at independantly.

    This thread asks, "is it proper for the U.S. Supreme Court to consider international opinion in deciding if laws and court decisions are in compliance with the U.S. Constitution?"
    I agree this is one of the issues Melanie took exception with in regards to this SC decision. Again, I emplore you to read the full decision, as Justice O'Connor discusses this issue at length in her dissent no less:
    Over the course of nearly half a century, the Court has consistently referred to foreign and international law as relevant to its assessment of evolving standards of decency. See Atkins, 536 U. S., at 317, n. 21; Thompson, 487 U. S., at 830-831, and n. 31 (plurality opinion); Enmund, 458 U. S., at 796-797, n. 22; Coker, 433 U. S., at 596, n. 10 (plurality opinion); Trop, 356 U. S., at 102-103 (plurality opinion). This inquiry reflects the special character of the Eighth Amendment, which, as the Court has long held, draws its meaning directly from the maturing values of civilized society.
    Again, it is notable that the Eighth Amendment is unique in putting forth this undefined dictum based on standards of human decency as among the highest laws of our country. Whether human decency is limited to American opinion or not is a reasonable question. Certainly, if the one is completely out of step with the rest of the world it should cause pause, and perhaps a second look in the mirror.

    That's the problem I have with the decision. It's too inflexible. From the decision I read:
    During closing arguments, both the prosecutor and defense counsel addressed Simmons' age, which the trial judge had instructed the jurors they could consider as a mitigating factor.
    To me that is the proper way to handle these types of cases. Rather than have a hard and fast rule, let the jury decide
    Although you are quoting from Justice O'Connor's dissent here, not the opinion [decision], I agree with you.

    I label judges by their opinions, not by who appointed them. A Justice that seeks to impose his own opinions on society or who looks to "international opinions" to justify his decision is "liberal". A Justice who looks soley to the Constitution and precedents is "conservative".
    Generally I refrain from getting baited into debating this simplistic and patently false characterization, but in this particular case, you are indisputably mistaken. The clause "cruel and unusual punishment" begs an evolving interpretation, precisely as designed. To believe otherwise would be to allow the execution of seven year old children. As so well put by Justice O'Connor in her dissent:

    It is by now beyond serious dispute that the Eighth Amendment's prohibition of "cruel and unusual punishments" is not a static command. Its mandate would be little more than a dead letter today if it barred only those sanctions--like the execution of children under the age of seven--that civilized society had already repudiated in 1791. See ante, at 1 (Stevens, J., concurring); cf. Stanford, supra, at 368 (discussing the common law rule at the time the Bill of Rights was adopted). Rather, because "[t]he basic concept underlying the Eighth Amendment is nothing less than the dignity of man," the Amendment "must draw its meaning from the evolving standards of decency that mark the progress of a maturing society." Trop v. Dulles, 356 U. S. 86, 100-101

    All nine members of the Court agree...The right-wing nut-job trio Scalia, Renky, and Thomas say its too soon to revisit this issue, no consensus yet, 2 + 2 = 13, and the other members of the Court are weenie asshats. (Scalia is getting really punchy these days....)
    Now who's affixing labels?
    Affixing labels...please. I'm name calling and fabricating here. Scalia may be a fuck-tard ass-clown...but he never actually said "asshat". The dipshit. Ohhhh....he's cool... 1000 x the jurist Renky or Thomas are combined.

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    Moderator Djoser's Avatar
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    Default Re: SC Justice Kennedy establishes potentially dangerous new precedent

    The tremendous advances in transportation and communication technology in modern times has led to a political milieu far different from that in which the Bill of Rights was composed. The United States can no longer afford to ignore international opinion, though it need not be so pusillanimous as to allow said opinion to dominate the administration of criminal justice.

    If one adapts an “original intent” approach to Constitutional interpretation, there would be no question of international opinion influencing how the passage “cruel and unusual punishment” was interpreted. The members of Congress who voted for the addition of the Bill of Rights to the Constitution were isolationist in point of view compared to modern Americans, and furthermore were accustomed to the notion of capital punishment being an accepted facet of criminal justice proceedings.

    At the time when the Constitution and the Bill of Rights were framed, methods of punishment relatively severe by modern standards were readily accepted if the crime was deemed to warrant it. As one Congressman put it, in his objection to the prohibition of cruel and unusual punishment, “…it is sometimes necessary to hang a man, villains often deserve whipping, and perhaps having their ears cut off […]If a more lenient mode of correcting vice and deterring others from the commission of it would be invented, it would be very prudent in the Legislature to adopt it; but until we have some security that this will be done, we ought not to be restrained from making necessary laws by any declaration of this kind.” (Annals of Congress 754, 1789)

    Here we have an unequivocal view of the realities of 18th Century justice. The fact that the speaker was opposed to the prohibition of “cruel and unusual punishment” is not nearly so striking as what he considers to be appropriate levels of physical chastisement, even if he does hold out hope for the eventual adaptation of “a more lenient mold.” What would be considered ‘cruel and unusual” to modern citizens of the United States, and of other nations as well, might seem quite acceptable by these standards. It is hard to imagine such a speech being made in present day Congress without consternation, outrage, and disastrous results for the speaker’s political career.

    One should perhaps instead follow a purposive interpretation of the Eighth amendment, which would require constant examination of evolving standards concerning human rights, to maintain compliance with contemporary substantive values. In the words of Justice Stevens, in Atkins vs. Virginia, “The Amendment must draw its meaning from the evolving standards of decency that mark the progress of an evolving society.“ Due consideration should perhaps be given to alternative methods of enforcing justice practiced by other nations, in an ongoing effort to ensure the most effective and moral manner of punishment. To limit oneself exclusively to such views concerning human rights as might be found in the United States might be considered rather close-minded.

    However, if one adapts a purposive interpretation of the Eighth Amendment’s prohibition of cruel and unusual punishment, a consideration of foreign opinion is not vitally necessary to discover whether or not capital punishment is the most appropriate measure for use within the United States. In this case, the opinion of Chief Justice Rehnquist, that “the work product of legislatures and sentencing jury determinations-ought to be the sole indicators by which courts ascertain the contemporary American conceptions of decency for purposes of the Eighth Amendment.”, could be upheld. These processes would be the most effective and the most democratic means of determining appropriate punishment within the United States, and the undue influence of foreign opinion would be unnecessary and inappropriate.

    Leaving aside the question of the validity of the Eighth Amendment as a limitation upon capital punishment, one would still be justified in asserting that foreign opinion, even if worthy of consideration, should still not be held superior to a well-reasoned assessment of what might be most effective in the unique social and cultural atmosphere found in the United States. The overriding criteria in the evaluative process must be what is most effective in the unique socio/political atmosphere of the United States, not what is most effective or considered to be most humane in other parts of the world.

    However, the political position of the United States in relation to the rest of the world is currently one of aggressive defense of democracy and human rights. If we are to command the respect of the world as a moral leader, and expect other nations to acquiesce when we use military force against other nations for purported humanitarian ends, we had best avoid charges of hypocrisy due to our own relatively high execution rate and the relatively harsh conditions to be found in American prisons. The retention of the death penalty, especially in the case of juveniles, could in this estimation make us vulnerable to the assertion that it is the most serious and irrevocable of the “…outward dramatizations of the ‘hatred, fear [and] contempt for the convict’ that characterize our attitude toward these offenders.” (Harsh Justice, James Q Whitman, Oxford Univ. Press, 2003)
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    Veteran Member stant's Avatar
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    Default Re: SC Justice Kennedy establishes potentially dangerous new precedent

    Quote Originally Posted by Djoser
    ...villains often deserve whipping, and perhaps having their ears cut off....
    Perhaps my arguments against "strict contructionist" dogma were hasty. I'm liking the completely gratuitous aspect of the ear thing.

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    Default Re: SC Justice Kennedy establishes potentially dangerous new precedent

    Quote Originally Posted by stant
    Perhaps my arguments against "strict contructionist" dogma were hasty. I'm liking the completely gratuitous aspect of the ear thing.
    And of course there's always the corollary punishment for rape that a lot of members here could probably support...

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