25 Jun The International Consensus that Didn’t Bark: U.S. Supreme Court Invalidates Death Penalty for Child Rape
I don’t want to step on Roger’s turf here, but I can’t resist a brief note on today’s U.S. Supreme Court decision invalidating a Louisiana law allowing the death penalty for rapists who victimize children under 13. As most of our readers know, the test for determining a violation of the Eighth Amendment turns on “evolving standards of decency that mark the progress of a maturing society.” This is usually determined by examining whether a national consensus exists on a particular type of punishment, although in recent years, the search for standards of decency has expanded to consider international values and views.
Although the Court was presented with an amicus brief arguing that state practice is moving steadily away from capital punishment for child rape, the opinion appears to be bereft of any such references or reliance. A strategic retreat for constitutional comparativists?
No, just another victory for the “evolving standards of decency” five.
They’re bothering less and less to try to even barely justify their decisions.
Well, the dissent should be an interesting read, none the less.
Perhaps simply a case of applying Occam’s razor….
There might actually be a coherent approach by the Court here. In Roper, the national consensus was not clear cut, so recourse to international and non-American sources was used as a means of clearing up internal doubts over the juvenile death penalty. In Kennedy, the national consensus was clear cut, so there was simply no need to look abroad to clear up any internal doubts. Of course, the Justices could have said this in Kennedy…
“the national consensus was clear cut”–I’ll take that as a pun on and endorsement of the aforementioned Occam’s razor explanation, for if “there was simply no need to look abroad to clear up any internal doubts,” we have further confirmation of the Court’s use of the principle of parsimony, that is, the Court’s recognition that “[legal] entities must not be multiplied beyond necessity!”
I have to confess, I didn’t know what Occam’s razor was when I posted my last comment, and it was poor of me not to look it up before posting. Anyway, having looked it up, I think you and I are on the same page.
😉