Wednesday, June 25, 2008

Kennedy v. Louisiana: Judicial Activism Part 3

Today, the U.S. Supreme Court published its 5 to 4 opinion in Kennedy v. Louisiana striking down Louisiana's law imposing the death penalty for Kennedy who was convicted by a jury for raping his 8 year old stepdaughter. More generally, it ruled that the 8th amendment to the U.S. Constitution prohibited the death penalty for crimes that do not end in death of the victim. Louisiana's law imposed the death penalty for those convicted of raping a victim 12 years old or younger. The national repercussion of this devastating opinion is to render the death penalty an option for the State to pursue solely for the most heinous murders, and for nothing else. Well, here's what happened in Kennedy case:

"Petitioner’s crime was one that cannot be recounted in these pages in a way sufficient to capture in full the hurt and horror inflicted on his victim or to convey the revulsion society, and the jury that represents it, sought to express by sentencing petitioner to death. At 9:18 a.m. on March 2, 1998, petitioner called 911 to report that his step-daughter, referred to here as L. H., had been raped.He told the 911 operator that L. H. had been in the garage while he readied his son for school. Upon hearing loud screaming, petitioner said, he ran outside and found L. the side yard. Two neighborhood boys, petitioner told the operator, had dragged L. H. from the garage to the yard, pushed her down, and raped her. Petitioner claimed he saw one of the boys riding away on a blue 10-speed bicycle.When police arrived at petitioner’s home between 9:20 and 9:30 a.m., they found L. H. on her bed, wearing a T-shirt and wrapped in a bloody blanket. She was bleeding profusely from the vaginal area. Petitioner told police he had carried her from the yard to the bathtub and then to the bed. Consistent with this explanation, police found a thin line of blood drops in the garage on the way to the house and then up the stairs. Once in the bedroom, petitioner had used a basin of water and a cloth to wipe blood from the victim. This later prevented medical personnel from collecting a reliable DNA sample. L. H. was transported to the Children’s Hospital. An expert in pediatric forensic medicine testified that L. H.’s injuries were the most severe he had seen from a sexual assault in his four years of practice. A laceration to the left wall of the vagina had separated her cervix from the back of her vagina, causing her rectum to protrude into the vaginal structure. Her entire perineum was torn from the posterior fourchette to the anus. The injuries required emergency surgery."

Now how a can person with a right mind say this does not deserve the death penalty? Is this not heinous enough? Our prisons are over-capacity. On average, it costs taxpayers more than $15,000 per prison per year. Anyway, forget the practical effects of this opinion. The legal reasoning is almost as breathtaking.

It is true that across our country there is trend toward banning the death penalty under the 8th amendment that outlaws cruel and unusual punishment. Specifically, there is solid case-law and precedence that unequivocally prohibits the death penalty for the rape of an adult woman. (Although, personally, I wouldn't mind killing these guys off too.) However, a minority of states have laws that allow the imposition of the death penalty for the rape of a minor, and in Louisiana's case, a minor 12 years old and younger.

The Court reasoned that because a majority of States have banned the death penalty for rapists of adult women, the death penalty for rapists of minor girls should also be banned under the 8th amendment. Ok, for any of you who know a little logic, clearly, this is logically fallacious. The Court takes a logical skip from rape of an adult women to the rape of a minor girl. The Court treats the two alike.

The Louisiana Supreme Court, before the case went to the U.S. Supreme Court, rightly took this dichotomy into consideration, and reasoned that the depravity of raping and brutally injuring an 8 year old girl was distinguishable from a rape of an adult woman. It further reasoned that although the law is well settled that the 8th amendment bans the death penalty for rapists of adult woman, there is no such well settled law concerning the rape of an 8 year old girl. Therefore, the Louisiana Supreme Court held, we affirm the death penalty for Kennedy.

More disastrously, this was another example of the Supreme Court trampling over States' rights. The Louisiana law clearly was a law passed by the Louisiana legislature. The Louisiana legislature represents the people of Louisiana. Therefore, the Supreme Court struck down the wishes of the people of Louisiana. Judicial usurpation of the Legislative branch at its finest. What happened to the separation of powers?

Ultimately, it was discovered that Kennedy had raped and brutalized his stepdaughter, and he was convicted by a jury of his peers. The prosecutor in this case had a memorable line during closing arguments. She implored, "Execute this man. Justice has a sword and this sword needs to swing today."

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