Wednesday, August 13, 2008

Open 'er Up

The Supreme Court, as most observers now know, made a big screw-up in Kennedy v. Louisiana (banning the death penalty for child rape). It (along with all other parties in the case, it must be said) missed a change in military law which authorized the death penalty for child rape -- which is significant because much of the majority opinion was based around a supposed evolving consensus away from imposing capital punishment for that crime. And as a result, Louisiana attorneys are asking the Supreme Court to reopen the case, since this error may of substantively affected the outcome of the case.

Meanwhile, Anthony Kennedy, as most Court observers recall, based a significant part of his opinion Carhart II (upholding a federal partial birth abortion ban) on the proposition that "some women come to regret their choice to abort the infant life they once created and sustained. Severe depression and loss of esteem can follow." This was, at the time, a statement wholly without evidence, and today we learn that it is in all relevant respects false. Women who have abortions are in fact no more likely to face mental health problems than women who deliver. And since giving birth actually is more physically risky for women than is abortion, it is exceedingly difficult to honestly justify the partial-birth abortion ban on the grounds of protecting women's health.

So, is anybody saying that Carhart should be reopened?

Of course, there are differences between the cases. Kennedy involved an elementary and clear-cut error of fact, while Carhart's error was with respect to a complicated empirical question. On the other hand, the mistake in Kennedy was only one point in an array of cases making the majority's claim. In Carhart, by contrast, there was never any evidence for Justice Kennedy's argument in the first place, a point the new study puts a big exclamation point on. Of course, that might also indicate that Justice Kennedy would have made his argument no matter what empirical data was presented before him, making this most recent study quite irrelevant.

Oh well. I thought it was interesting, anyway.

Incidentally, my view as to whether the death penalty for child rapists is justified mirrors Matthew Yglesias' pretty exactly.

3 comments:

Cycle Cyril said...

Is this an argument to can Kennedy?

PG said...

Kennedy could have avoided the whole problem by realizing that the evolving consensus only matters for the kind of people whom we should execute, not for the types of crimes.

There is a bigger difference between _Louisiana_ and _Carhart_ than what David mentions. In Louisiana, Kennedy was overturning legislation as unconstitutional; in Carhart, he was just having to find sufficient reason to uphold legislation that limited how one could exercise a fundamental right. And there certainly is evidence that "some women come to regret their choice to abort the infant life they once created and sustained."

Anonymous said...

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Child rapists don't deserve the mercy of Death Row and a state execution, they deserve Life in Prison without parole and special protections. This way the other inmates will have many chances to gang-rape the scum every day, and then torture the vermin to death when they are sick of him.
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Finally the Supremes got one right with the DC Gun Ban issue. Hopefully, knowing that more homes may have guns, more raping and home-invading monkeys will cease in this behavior or be blown away as they well deserve. The world will be MUCH better with more of this scum dead.
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absurd thought -
God of the Universe feels
sorry for child rapists

when they are murdered
in cold blood by other thugs

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absurd thought -
God of the Universe says
KILL the raping monkeys

even if they prefer death
over life in prison

.
absurd thought -
God of the Universe says
you may not defend yourself

guns are for criminals
just hope police show in time

.
absurd thought -
God of the Universe says
prosecute citizens

when they kill home invaders
threatening their families

.
absurd thought -
God of the Universe thinks
women shouldn’t carry guns

their attackers and rapists
don’t deserve their brains blown out

.
Philosophy of Liberty Cartoon
.
Child Rapists Deserve Violent Death in Prison
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Help Halt Terrorism Today!
.
USpace

:)
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