Another Supreme Court Opinion--No Death Penalty for Child Rapists

In another controversial decision, the Court ruled 5-4 that Louisiana's law treating child rape as a capital crime is unconstitutional. Opinion author and swing voter Anthony Kennedy wrote that:

"the death penalty is not a proportional punishment for the rape of a child,"

I won't comment on the decision itself until I read the opinions, but I will confess that my gut reaction is that child rape is perhaps the most jusifiable case for the death penalty. If you've ever met someone who was raped as a child, you'll know that it's a life sentence for the victim. Every person I've known who was raped as a kid (and I've known enough to scare the shit out of me as the father of three girls) was completely screwed up--functional, but only just barely, and apt to lose it completely at any time. I wonder if the majority recognized the severity of the crime.

And while this isn't a good legal argument for the death penalty, I don't believe child molesters can change. From an evolutionary perspective, it makes perfect sense for an adult male of any age to be attracted to a sexually mature female of any post-pubescent age. That doesn't justify rape, but the point is that a man who rapes a 13 year old is a criminal, but not necessarily much further off the deep end psychologically than a man who rapes a 21 year old. Sexual attraction to a pre-pubescent, however, provides no selective advantage, so evolutionary theory doesn't explain it--these people are just wired wrong, in a way that we can't fix. And, giving the Court's majority the benefit of the doubt that execution is too severe, there's been a tendency in the U.S. to give these people minimal sentences--a three month sentence for child molestation is not unknown, and sentences of 1-3 years are not rare.

Since I generally oppose the death penalty--not on moral, but purely pragmatic grounds, as we do make mistakes, and they're non-correctable--perhaps we can all just compromise on locking up these perpetrators for life without possiblity of parole? And can somebody explain why so many state legislatures haven't done that yet? Whose re-election hopes rest on keeping child molesters out of prison?

Strange Days on the Supreme Court

4 member of the Supreme Court had to recuse themselves from a case this week because of conflicts of interest. Because at least 6 justices must hear a case, the Court couldn’t rule. The unusual situation occurred because the lawsuit involved 33 different companies, who are trying to stop a lawsuit on behalf of all South Africans charging them with having supported the apartheid government. Apparently it’s the first time in a quarter-century this has happened.

It seems to me that if the justices would put their money in a blind trust, we wouldn’t have the necessity of such recusals. What are the odds they’re carefully picking and choosing their own stocks anyway?

Still, at least they followed the proper procedure (actually, federal law, which mandates recusal if they own stock) and recused themselves. The Court’s reputation is still recovering from the damage caused by Scalia’s refusal to recuse himself in the Cheney case.

The Court's inability to rule means the case will go forward, to the dismay of the Bush administration, which had asked the Court to block the case because it

“is causing present injury to important interests of the United States and the Republic of South Africa.”

That sounds to me like they're putting politics above the law, but certainly I'd never expect this administration to do that. (/tongue-in-cheek)

In Which I Challenge Ed Brayton to a Friendly Wager

In a post about James Dobson's claim that he'll sit out the election if John McCain is the Republican nominee., Ed Brayton calls Dobson a liar (true enough, I think), and makes the following prediction.

...he's pretending that he'll sit out the election in order to gain maximum leverage in cutting a deal with McCain in exchange for his support...And the deal will be that when there is a Supreme Court opening, McCain picks from their short list.

I could be a fool, but I agree with the Republicans who claim McCain isn't that conservative. I also think McCain knows damn well that his support is coming from the middle. So I don't think he'd commit to such a deal to get Dobson's endorsement, and I don't think he'll appoint an ultra-conservative to the Supreme Court.

So I challenged Ed to a friendly wager.

If Dobson endorses McCain,, and if McCain is elected, and if McCain gets a Supreme Court appointment, I bet he chooses a moderate. I prefer beer, scotch, or bourbon as the wager, but I don't know if Ed's a drinker--I guess I could stoop to wearing a Duke shirt if I lose.

I think the odds of McCain winning are slim, so this bet would probably be a safe one for both parties.

And this isn't intended as a slam at Ed, who runs what I think is the best political blog on the web. Mostly I just want to put myself on record, so if I'm wrong I can't deny it (you know, like those pathetic creationists and IDiots constantly do).