Going One Better

by digby


Democrat Barack Obama says he disagrees with the Supreme Court's decision outlawing executions of people convicted of raping a child.

Obama told reporters Wednesday that he thinks the rape of a child, ages six or eight, is a heinous crime. He said if a state makes a decision, then the death penalty is potentially applicable.

What legal principle does that fall under I wonder?

I think those who rape children are truly heinous individuals, for sure. But once you start saying the the death penalty is for "heinous" crimes rather than the specifically heinous crime of taking another life, you open up a whole new world of execution worthy categories. There was a time when stealing a horse was considered so heinous that it deserved the the death penalty. Should we go back to a time when the state could pretty much decide to execute anyone it wanted?

I get why he said it. Everybody's petrified of being "gotcha'd" like Dukakis on the rape question. But this one isn't hard. All he had to say was that as a father he would certainly want to kill anyone who did such a heinous thing with his bare hands, but as a public servant and legal scholar he knows that the death penalty should be reserved for people who kill. Child molesters should be locked up and never allowed near children again. Nobody would think he was soft for saying that he would support the Supreme Court decision on this. Jesus, it wasn't that long ago that being against the death penalty for any crime was an established liberal principle --- and the Supreme Court agreed!

But hey, I guess that's what makes it a nice political freebie. A chance to side with Scalia and Roberts without any consequences is a welcome gift when you are trying to shed the liberal label. I get that. But I don't see how that is good for the country. With a corrupt and imperfect legal system run by members of the human species, we shouldn't be executing anyone. Raising the ante, even rhetorically, is not helpful.

Bill Clinton raced to Arkansas to sign a retarded man's death warrant in his run in 1992 and now Barack Obama says that he believes the death penalty should be expanded to non-murderers. Not much "progress" on this one, that's for sure.

Update: I am told by one of my readers that it is disrespectful to assume that Obama doesn't really believe the death penalty should be expanded. That's true. He may very well truly believe this.

Update II: From SCOTUSblog's analysis of the ruling:

On Wednesday, in Kennedy v. Louisiana (07-343), the Court’s five-Justice majority said at one point: “When the law punishes by death, it risks its own sudden descent into brutality, transgressing the constitutional commitment to decency and restraint.” For a Court not yet ready to end the long-running constitutional experiment with the death penalty, it was a revealing utterance of near-revulsion at the process.

Back on April 16, in a separate opinion in Baze v. Rees (07-5439), Justice John Paul Stevens wrote that he had reached “the conclusion that the imposition of the death penalty represents ‘the pointless and needless extraction of life with only marginal contributions to any discernible social or political purposes. A penalty with such negligible returns to the state [is] patently excessive and cruel and unusual punishment violative of the Eighth Amendment.’ “ With that, a fourth Justice in the nation’s history — after William J. Brennan, Jr., Thurgood Marshall and Harry A. Blackmun — converted to the abolitionist side on capital punishment.

The first of those two statements is clear evidence that the Court, at least as presently constituted, is determined not to “extend” or “expand” the reach of the death penalty (the use of the words “extend” and “expand” prompted some of the dissenting Justices’ most critical responses Wednesday). And the second of those statements suggests, once more, that the longer a Justice stays on the Court and watches capital cases come and go, the greater the prospect that capital punishment will lose another vote and there will be an internal voice reinforcing any other Justice’s hesitancy.

That does not mean, however, that the Court will routinely stop executions. Since its ruling in Baze, it has repeatedly declined to step in to block a scheduled execution. And even Justice Stevens has not dissented from those orders. But there is a definite trend line: following nullification of the death penalty for the rape of an adult woman (Coker v. Georgia, 1977, for murder by a mentally impaired individual (Atkins v. Virginia, 2002), and murder by a minor (Roper v. Simmons, 2005), the options for using the death penalty continue to narrow.

For me, that's a rare bit of good news from the Court. Apparently, mileage varies pretty widely on that among liberals these days.

Update III: It appears that this is an explicit states' rights argument. That doesn't improve the position.