Kennedy v. Louisiana: I Agree 2 -- More Thoughts

Justice Alito argues in his dissent that there is not a national consensus to prohibit child rape that could be reflected in the "evolving standards of decency."  He's probably right about that.  As he notes, the language in the Coker decision thirty years ago prohibiting the death penalty for rape of an adult woman was broad enough to allow most state legislatures to assume that a murder was required for death.  That was pretty well my assumption and I assumed the Texas legislature was doing its usual meaningless posturing when the death penalty was extended to the death penalty for child rapes.

I think judges are more reluctant than the communities "standards of decency" to impose the death penalty in rape.  The confidence level that a crime has been committed in a murder tends to be higher in a murder than with a rape.  With a murder there is usually a body and a murder weapon.  It is of course possible to confuse a murder with an accident or a suicide and it is possible to get mixed up about who did it.  With a rape, there are the issues of consent and even whether there has been a sexual act.   

So if rape can be worse than murder (and it can) why not forge ahead and kill rapists?  Well, its the Scottsboro Boys.  It was 1931 and the Chattanooga to Memphis freight train was filled with young hoboes, white and black, male and female.  There was an altercation that involved the white teenagers being tossed off the train.  They complained to the stationmaster who wired ahead and a posse Paint Rock, Alabama stopped the train.  They unloaded all the blacks they can find, tied them up, threw them on a flatbed truck and hauled them to the jail in Scottsboro, Alabama.

They were brutalized legally and in the jail system.  They were given the death penalty without lawyers.  The racism was undisguised.  The case became a international scandal and new law was made trying to find a way to keep Alabama from lynching the young men.

Most likely from the examining doctor's testimony a rape was never committed.  The girls had been seized by the posse in Alabama and were under pressure to cooperate.  The doctor found sperm, but it was not motile and too old to be from the train ride.

As I remember the history I read years ago, had it not been for the American Communist Party the teenagers would most certainly have been hanged.  The NAACP was a afraid of the case because of the issue of rape.  Other normally activist groups were similarly passive.

A black on white rape was easy to allege, hard to deny and could serve as a great tool to control an under-class.  I think this is part of the reticence today to apply the death penalty to race cases.

However, I understand the reluctance of Mr. BB and others to rely on "evolving standards of decency."  I have written before here about the risk that evolution can give a bigger or a smaller product at the end of the process.  Little horses have evolved into big horses, but big armadillos have evolved into little armadillos.  Our sense of dignity historically allowed genocide against different Indian peoples and could well evolve into mass murder and internment camps again.

The confidence placed in the written word is misplaced though.  How much is the Article I, the Texas Bill of Rights honored?  Was has become of being secure in a persons, etc?  Where are those 4th, 5th, and 8th Amendments when we need them?

Original intent is very logical, but are we willing to swallow the pill that comes with it.  Our evolving sense of dignity has rejected both banishment and punishment by hard labor.  Do we want these back?

The founders' sense of decency allowed slavery and prohibited women the vote.  Are we ready to return to those wise days?

And as Mr. WC notes, homosexual acts could bring the death penalty.  In fact one Joseph Ross was executed for "buggery" by the state of Pennsylvania in 1785.  That's not all, though.

 Blasphemy and idolatry were capital crimes in Connecticut, Massachusetts, and New Hampshire.  Adultery was capital in Connecticut, Massachusetts and New York.  Sodomy and bestiality were capital throughout the northern colonies, even for the animals involved.

Other capital crimes included robbery, burglary, arson, manslaughter, rape, highway robbery, maiming, burglary, arson, witchcraft, counterfeiting, squatting on Indian land, prison-breaking, piracy, perjury, embezzling tobacco, fraudulently delivering tobacco, forging inspectors' stamps for tobacco, smuggling tobacco, stealing hogs, receiving a stolen horse and concealing property to defraud creditors and burning timber intended for house frames.  

There were special capital statutes applicable only to blacks.  These included burning or destroying any grain, commodities, or manufactured goods, enticing other slaves to run away or "bruising" whites.  Virginia feared attempts at poisoning and made it an offense for blacks to prepare or administer medicine.

I hope an execution for most of these offenses would offend the sense of decency for most of us.  The colonial and state legislatures, though, gathered a majority to allow an execution for all of these laws.

Can't we acknowledge the sense of decency has and should change?  Or should go round up a black pharmacist and kill him to avoid the threat of poisoning?

Sans teeth, Sans eyes...

Do not go gentle into that good night,
Old age should burn and rave at close of day;
Rage, rage against the dying of the light.

My first reaction to the Dylan Thomas poem is, "Typical old drunk. You'll accomplish not much raging against the inevitable."

But he, at least, has a plan for aging. I haven't gotten there yet.

People will give subtle hints that you are aging. For instance, I went to a comedy show with Austin and Kate a while back and all the comedians called me "Old Dude."

I do have some aging coaches who give me some ideas on how to do this hard thing.

My mother works cross-word puzzles every day and calls me to discuss some of the hard ones. She is the determined wordsmith at 85. She is planning a 100th birthday celebration with two of her sisters. She would be the oldest if they make it. She has an aunt on each side of her family who lived past 100, so she is hopeful. She heads out most days for a long walk around tiny Romney, WV. She must be some type of town fixture by now.

My old Grandma Stapleton was reciting poetry until her last year at 88. She was formidable and aggressive, too, until the end.

My friend Dr. Kuri, also, has given me much guidance. At 82, he still works seven days a week, preparing patient histories and doing pre-employment physicals. During a cross-examination today, he defended his opinion, despite his age, by noting that he is still 6 years younger than Justice Stevens. True. John Paul Stevens was born April 20, 1920 and turns 88 this month. He remains active on the Court and if he can last three more years he will pass Oliver Wendell Holmes, Jr. to take the record. Dr. Kuri could also have noted he is still 9 years younger than Holmes was when he was still writing Supreme Court Decisions. (Stevens authored Atkins v. Virginia, the case I discussed yesterday, that banned execution of the retarded.)

Once upon a time, long, long ago, I used to worry about not having saved any money for retirement. It was Dr. Kuri who let me off the hook on that one and told me I could not retire anyway, because I would deteriorate much too rapidly.

The worst thing about longevity: you outlive all your friends. I watched as my Grandma Stapleton's last friends and relatives died. She would watch the obituaries closely. There was a sense of triumph that she had outlasted another one, but also the sad realization that she was being left more and more alone.

Normal changes with aging. Dr. Kuri notes about teeth: it is not normal to be toothless at thirty. It is normal at 90.

I find that I am not always sure whether something is wrong or it is just a little aging. I was having a little trouble with my knees getting up and down stairs recently. I thought, "Whoops, aging." Then it get better and went away. I think I had too much incline on the treadmill during my once-monthly attempt at exercise.

One option is to try not to age. You know, comb overs, prematurely orange hair.

Another is to accept the course as the poet describes it:

And so he plays his part. The sixth age shifts
Into the lean and slipper'd pantaloon,
With spectacles on nose and pouch on side;
His youthful hose, well sav'd, a world too wide
For his shrunk shank; and his big manly voice,
Turning again toward childish treble, pipes
And whistles in his sound. Last scene of all,
That ends this strange eventful history,
Is second childishness and mere oblivion;
Sans teeth, sans eyes, sans taste, sans everything." — Jaques (Act II, Scene VII, lines 139-166)

Our Sense of Decency Has Evolved How Far?

The Supreme Court rejected the appeal of Elkie Lee Taylor today. He was a sixth grade dropout who tested 63 on an IQ test that generally considers under 70 as retarded. Unless the manner of execution by lethal injection is thrown out, Mr. Taylor will probably be executed.

In 2002 the Supremes decided Atkins v. Virginia and banned execution of the mentally retarded. Then, they left the decision up to the states on how to determine who is mentally retarded.

Since Texas has only killed 402 since 1982, and 403 seems like a much better number, Mr. Taylor is back on the list.

Texas has an odd way of determining mental retardation if you accept the present position of the Texas Court of Criminal Appeals. We don't need to find out ahead of time if the guy is retarded. Just try him and if he gets convicted then the jury can decide if he is retarded when they are considering sentencing.

The problem with determining mental retardation at sentencing is that the jurors’ values may not comport with a constitutional requirement to spare the mentally retarded. It may be our (America's) sense of decency has evolved far enough not to execute the retarded, but if we get some of those unevolved jurors, they may not be willing to find mental retardation to spare a killer, even if it is so.

What about a dangerous, mentally retarded man who will most likely kill again. The Constitution may now say, "No execution," but the jurors (who have already been qualified in their ability to consider the death penalty) say, "Well, especially if he is retarded, on top of being a dangerous killer, should we execute him."

Justice Brennan discussed this problem in an earlier decision:

“It appears to us that there is all the more reason to execute a killer if he is also . . . retarded. Killers often kill again; [a] retarded killer is more to be feared than a . . . normal killer. There is also far less possibility of his ever becoming a useful citizen.”

In arguing against assessing mental retardation during sentencing, Justice Brennan states, “Lack of culpability as a result of mental retardation is simply not isolated at the sentencing stage as a factor that determinatively bars a death sentence; for individualized consideration at sentencing is not designed to ensure that mentally retarded offenders are not sentenced to death if they are not culpable to the degree necessary to render execution a proportionate response to their crimes.”

So this is still the problem if the death penalty comes from Texas. Just because the shrinks may say the guy tests retarded, the jury may not want to, especially since they will know that it means letting a killer live, retarded or not.

The Supremes did not decide Mr. Taylor should die, they just refused to hear the case. Mr. Taylor may not be too excited about the distinction since he still may end up six feet under. Besides, he has an IQ of 63.

One of the mentally retarded executed before our sense of decency evolved in Atkins is said to have been given the last supper of his choice. He did not eat the dessert. When asked, "why not," he said he was saving it for later.

Medellin v. Texas, Glyptodonts and Other Curiosities.

It is so nice that just when I am wanting to think about international law, the Supremes decide to write about the subject.

The Supreme Court decided Medellin v. Texas this week.

Two teenage girls, 14 and 16, who were trying to walk home were raped and murdered by Jose Ernesto Medellin and other members of the "Black and White" gang. As Chief Justice Roberts writes, "Medellín was personally responsible for strangling at least one of the girls with her own shoelace."

Mr. Medellin was tried in state court in Texas, convicted and sentenced to death.

The fact that brought this case to the Supreme Court: Medellin was born in Mexico, although he had lived in the United States since preschool.

This gave the Republic of Mexico an interest in the case. The "evolving sense of dignity" that allows or does not allow the death penalty has evolved further in Mexico than it has in the United States. Every so often the U.S. Supremes check in on how far our sense of dignity has evolved. Fairly recently it evolved so we no longer execute children or the retarded, but it has not yet evolved far enough to not execute anybody. We may have evolved far enough that the current form of lethal injection is not allowed, but we should not know this until later this year.

I know some of you evolutionists will be surprised that human dignity evolves at such a rapid rate in the United States. Apparently the mechanism is not an form of natural selection, but is more Lamarckian in that a desire to evolve can produce the result.

One of the first signs of the evolution of the sense of dignity in the United States was a 1910 case in which a soldier named Weems was exiled and made stateless because he went absent without leave. The Supremes then noted that this exile business may be grounded in history, but saw we had evolved. Since that time, our sense of dignity has changed. Sometimes we evolve more rapidly than others.

I don't know if our evolving sense of dignity can also lower the standards for dignity. Just as natural selection can respond to the environment to produce taller creatures, it can also select shorter creatures. Those prehistoric armadillos that used to weigh 4000 pounds are all gone, but the little horses have evolved into bigger ones. Think mouse vs. nutria.

When the Supremes talk about it, usually they have boasted that our evolving sense of dignity has evolved in favor of being more shocked at torture or different forms of death.

However, I am somewhat concerned it might evolve in the other direction. I can imagine the Chief Justice reporting, "We know waterboarding was once considered cruel and unusual punishment in the United States. However, our sense of dignity has now evolved as a result of years of everybody being scared to death by the talk of terrorism. Therefore, although this was once cruel and unusual punishment, it is not any more. We will check back in a few years on whether being drawn and quartered and shoving bamboo under the fingernails are cruel or unusual."

Mexico and the United States have entered into some treaties. Each country apparently desires to protect its citizens from the barbarity of the other's legal system. The United States had captured 51 Mexicans, including Medellin, who we want to kill. Mexico went to the international court in the Hague and said, hey, we had a deal cut in Vienna, you are supposed to notify us when you arrest Mexicans so we can help them out.

The Supremes this week say, as far as I can understand, "Sure, we signed on to that treaty and we agree to the jurisdiction of the international court. The International Court of Justice can tell us when we are acting illegally, they just can't make us do anything about it. If Texas courts don't want to follow this ruling, they don't have to. And just because President Bush says they should have to follow it, they still don't have to. So there."