[Deathpenalty] death penalty news-----USA

[Rick Halperin]

June 26



USA:

USA: Another step up the evolutionary ladder

Supreme Court prohibits death penalty for child rape

26 June 2008 AI Index: AMR 51/069/2008


Based both on consensus and our own independent judgment, our holding is
that a death sentence for one who raped but did not kill a child, and who
did not intend to assist another in killing the child, is unconstitutional
under the Eighth and Fourteenth Amendments.

Kennedy v. Louisiana, US Supreme Court, 25 June 2008


On 25 June 2008, by 5 votes to 4, the US Supreme Court struck down a
Louisiana law allowing the death penalty for the non-homicidal rape of a
child. The five Justices in the majority opinion held that execution was
an excessive punishment in such cases, and that the USA's constitutional
ban on "cruel and unusual" punishments bars imposition of the death
penalty for the rape of a child "where the crime did not result, and was
not intended to result, in the victim's death."

Amnesty International welcomes the judgment, while acknowledging the
serious nature of the crimes targeted by such legislation in a number of
states in the USA. In addition to its absolute opposition to the death
penalty in all cases, the organization has been concerned that such laws
run counter to international standards seeking to narrow the scope of the
death penalty, and that they contradict the global trend towards
eradication of capital punishment. While children must be protected from
violence, the death penalty is not the way to do it. And while the victims
of childhood sexual assault deserve all possible therapeutic assistance,
executing the offender does nothing to heal the trauma caused by the
crime. Indeed, a law that increases the punishment for child rape from
imprisonment to death may put the life of the child at increased risk. If
such an offender rapes or otherwise sexually abuses a child, and is aware
of the detail and scope of the law, he might decide that he has nothing to
lose by killing the child, the only witness to the offence. The death
penalty would thus have become a counter-deterrent. Such laws may also
bring with them particular risks to the accused. A child who becomes a
witness is vulnerable to making unreliable statements, a matter of extreme
concern when such evidence may be what secures a death sentence.

The case here concerned Patrick Kennedy, who was sentenced to death in
Louisiana in 2003 for the rape of his eight-year-old stepdaughter. Only
one other man is on death row for the rape of a child in the USA. A
Louisiana jury sent Richard Davis to death row in 2007 for the rape of a
five-year-old child. Of the approximately 3,300 individuals on death row
in the USA, these 2 men are the only condemned inmates who were convicted
of crimes not involving murder.

As in its rulings in 2002 and 2005 outlawing the execution of people with
mental retardation (Atkins v. Virginia) and of people for crimes committed
when they were under 18 years old (Roper v. Simmons), the Supreme Court
applied its "evolving standards of decency" analysis. In Trop v. Dulles in
1958, the Supreme Court had held that the meaning of the US Constitution's
Eighth Amendment ban on cruel and unusual punishments was not static, but
"draw[s] its meaning from the evolving standards of decency that mark the
progress of a maturing society." In a brief filed with the Supreme Court
half a century later in the Kennedy case, urging the Justices to uphold
the Louisiana child rape law, the state prosecuting authorities in Texas,
Alabama, Colorado, Idaho, Mississippi, Missouri, Oklahoma, South Carolina
and Washington argued that "such evolution need not be in only one
direction".

Nevertheless, authoring the majority opinion in the Kennedy v. Louisiana
ruling, Justice Anthony Kennedy wrote that:

"Evolving standards of decency must embrace and express respect for the
dignity of the person, and the punishment of criminals must conform to
that rule When the law punishes by death, it risks its own sudden descent
into brutality, transgressing the constitutional commitment to decency and
restraint."

Justice Kennedy explained that this is why capital punishment in the USA
is "limited to those offenders who commit a narrow category of the most
serious crimes and whose extreme culpability makes them the most deserving
of execution." Thus, children and the mentally impaired had been excluded
from the death penalty by the Roper and Atkins decisions because such
defendants were categorically less culpable. In earlier decisions, the
Court had held that death was an impermissible punishment where the crime
did not result, and was not intended to result, in the death of the
victim.

In Amnesty International's view, the death penalty per se is incompatible
with human dignity. As the United Nations General Assembly said in its
landmark resolution against the death penalty adopted in late 2007, "the
use of the death penalty undermines human dignity", and "a moratorium on
the use of the death penalty contributes to the enhancement and
progressive development of human rights".

In Kennedy v. Louisiana, the Court examined the USA's history of the death
penalty for the crime of rape. It found that in 1925, 18 states, the
District of Columbia and the federal government had laws that allowed the
death penalty for the rape of a child or an adult. Between 1930 and 1964,
455 people were executed for such crimes. After the Supreme Court struck
down the country's existing death penalty laws in 1972 in Furman v.
Georgia, six states re-enacted laws allowing the death penalty for rape,
but these laws were subsequently also invalidated. In 1995, Louisiana
reintroduced the death penalty for the rape of a child, and Georgia,
Montana, Oklahoma, South Carolina and Texas subsequently followed with
their own legislation, leaving 44 states and the federal government
without such laws in force. The Kennedy decision noted that "it is of
significance that, in 45 jurisdictions, [Patrick Kennedy] could not be
executed for child rape of any kind."

The Supreme Court majority compared such figures to those before it in
Atkins and Roper. In 2002, 30 states prohibited the death penalty for
people with mental retardation, while 20 permitted it. In 2005, 30 states
prohibited the death penalty for offenders under the age of 18 at the time
of the crime, and 20 allowed it. Executions of such prisoners were
relatively rare and confined to a handful of states. The Court noted that
no one had been executed in the USA for the rape of a child or an adult
since 1964, and no one had been executed for any other non-homicide crime
since 1963.

The Court rejected the State of Louisiana's contention that under the
"evolving standards of decency" analysis, the six states where child rape
is a capital offence, coupled with proposals in a number of other states
to enact such laws, reflected an emerging consensus in favour of such use
of the death penalty. The Kennedy majority responded that "It is not our
practice, nor is it sound, to find contemporary norms based upon state
legislation that has been proposed but not yet enacted." The Court added
that in any event, efforts to pass such legislation had recently failed in
a number of states.

The 5 Justices in the majority concluded that the history of the death
penalty for rape and other non-homicide crimes, current laws and
legislative activity, and the low number of death sentences and absence of
executions for such crimes pointed to "a national consensus against
capital punishment for the crime of child rape". Having drawn this
conclusion, the Court then went on to apply its "own judgment" to the
issue.

The majority thoroughly acknowledged the seriousness of the crime for
which Patrick Kennedy had been convicted, saying it was not possible to
recount the crime "in these pages in a way sufficient to capture in full
the hurt and horror inflicted on his victim". The "attack was not just on
her but on her childhood Rape has a permanent psychological, emotional,
and sometimes physical impact on the child." However, while "the years of
long anguish that must be endured by the victim of child rape" must not be
dismissed, the majority said, it did not follow that the death penalty is
a proportionate punishment for the crime:

"Evolving standards of decency that mark the progress of a maturing
society counsel us to be most hesitant before interpreting the Eighth
Amendment to allow the extension of the death penalty, a hesitation that
has special force where no life was taken in the commission of the crime.
It is an established principle that decency, in its essence, presumes
respect for the individual and thus moderation or restraint in the
application of capital punishment [T]he death penalty should not be
expanded to instances where the victim's life was not taken

Consistent with evolving standards of decency and the teachings of our
precedents we conclude that, in determining whether the death penalty is
excessive, there is a distinction between intentional first-degree murder
on the one hand and non-homicide crimes against individual persons, even
including child rape, on the other. The latter crimes may be devastating
in their harm, as here, but in terms of moral depravity and of the injury
to the person and to the public, they cannot be compared to murder in
their severity and irrevocability."

The majority attached significant weight to the fact that the frequency of
child rape, if punishable by death, could result in a substantial upsurge
in the use of the death penalty: "The crime of child rape, considering its
reported incidents, occurs more often than first-degree murder." Such an
increase in the use of capital punishment, the Court said, "could not be
reconciled with our evolving standards of decency and the necessity to
constrain the use of the death penalty." Moreover, any attempt to narrow
the use of the death penalty within the category of child rapists would
likely result in inconsistencies. The Court said that "the resulting
imprecision and the tension between evaluating the individual
circumstances and consistency of treatment have been tolerated where the
victim dies. It should not be introduced into our justice system, though,
where death has not occurred." It continued:

We have spent more than 32 years articulating limiting factors that
channel the jury's discretion to avoid the death penalty's arbitrary
imposition in the case of capital murder. Though that practice remains
sound, beginning the same process for crimes for which no one has been
executed in more than 40 years would require experimentation in an area
where a failed experiment would result in the execution of individuals
undeserving of the death penalty. Evolving standards of decency are
difficult to reconcile with a regime that seeks to expand the death
penalty to an area where standards to confine its use are indefinite and
obscure."

Amnesty International reiterates its view that the death penalty in the
USA remains a punishment marked by discrimination, arbitrariness and
error, despite the efforts of the Supreme Court to regulate it.

In Kennedy v. Louisiana, on the question of one of the would-be
justifications for the death penalty, retribution, the Court stated that:

"It is not at all evident that the child rape victim's hurt is lessened
when the law permits the death of the perpetrator. Capital cases require a
long-term commitment by those who testify for the prosecution, especially
when guilt and sentencing determinations are in multiple proceedings. In
cases like this the key testimony is not just from the family but from the
victim herself. During formative years of her adolescence, made all the
more daunting for having to come to terms with the brutality of her
experience, [the victim in this case] was required to discuss the case at
length with law enforcement personnel. In a public trial she was required
to recount once more all the details of the crime to a jury as the State
pursued the death of her stepfather. And in the end the State made [her] a
central figure in its decision to seek the death penalty, telling the jury
in closing statements: '[She] is asking you, asking you to set up a time
and place when he dies.'

Society's desire to inflict the death penalty for child rape by enlisting
the child victim to assist it over the course of years in asking for
capital punishment forces a moral choice on the child, who is not of
mature age to make that choice. The way the death penalty here involves
the child victim in its enforcement can compromise a decent legal system;
and this is but a subset of fundamental difficulties capital punishment
can cause in the administration and enforcement of laws proscribing child
rape."

In addition, the Court concluded that there were "serious systematic
concerns" in prosecuting the crime of child rape as a capital offence,
including the problem of "unreliable, induced, and even imagined child
testimony". Such testimony could lead to the execution of wrongfully
convicted defendants in some child rape cases, particularly given the
likely centrality of the victim as a witness in any such case. The
question in a capital case, the Court continued, "is not just the fact of
the crime, including, say, proof of rape as distinct from abuse short of
rape, but details bearing upon brutality in its commission. These matters
are subject to fabrication or exaggeration, or both."

In examining the question of deterrence, the Court noted that
under-reporting is a common problem with respect to child sexual abuse. A
commonly cited reason for not reporting abuse is the fear of negative
consequences for the perpetrator, "a concern that has special force where
the abuser is a family member." In such circumstances, under-reporting
would be increased, and "punishment by death may not result in more
deterrence or more effective enforcement." Moreover, the existence of the
death penalty could make it more likely that the abuser will kill the
victim. "Assuming the offender behaves in a rational way, as one must to
justify the penalty on grounds of deterrence, the penalty in some respects
gives less protection, not more, to the victim, who is often the sole
witness to the crime."

After considering such issues, the majority concluded that the death
penalty "is not a proportional punishment for the rape of a child." Thus,
"Based both on consensus and our own independent judgment, our holding is
that a death sentence for one who raped but did not kill a child, and who
did not intend to assist another in killing the child, is unconstitutional
under the Eighth and Fourteenth Amendments."

Four of the Justices dissented, rejecting the claim that a national
consensus had been shown. Justice Samuel Alito, writing for the four
dissenting Justices, argued that "Neither Congress nor juries have done
anything that can plausibly be interpreted as evidencing the 'national
consensus' that the Court perceives". He continued: "I do not suggest that
six new state laws necessarily establish a 'national consensus' or even
that they are sure evidence of an ineluctable trend. In terms of the
Court's metaphor of moral evolution, these enactments might have turned
out to be an evolutionary dead end. But they might also have been the
beginning of a strong new evolutionary line. We will never know, because
the Court today snuffs out the line in its incipient stage".

It is a snuffing out, if that is what it is, that Amnesty International
welcomes. Better that a death penalty law be snuffed out, than a human
being who becomes the target of such a law.

The dissent paid particular attention to the harm done to the child
victims of rape. Justice Alito wrote, for example:

"It has been estimated that as many as 40% of 7- to 13--year-old sexual
assault victims are considered 'seriously disturbed.' Psychological
problems include sudden school failure, unprovoked crying, dissociation,
depression, insomnia, sleep disturbances, nightmares, feelings of guilt
and infe-riority, and self-destructive behavior, including an in-creased
incidence of suicide.

The deep problems that afflict child-rape victims often become society's
problems as well. Commentators have noted correlations between childhood
sexual abuse and later problems such as substance abuse, dangerous sexual
behaviors or dysfunction, inability to relate to others on an
interpersonal level, and psychiatric illness. Victims of child rape are
nearly 5 times more likely than non-victims to be arrested for sex crimes
and nearly 30 times more likely to be arrested for prostitution.

The harm that is caused to the victims and to society at large by the
worst child rapists is grave. It is the judg-ment of the Louisiana
lawmakers and those in an increas-ing number of other States that these
harms justify the death penalty. The Court provides no cogent explanation
why this legislative judgment should be overridden. Con-clusory references
to 'decency,' 'moderation,' 'restraint,' 'full progress,' and 'moral
judgment' are not enough."

As Amnesty International pointed out in its short 2006 report on this
issue, a large number of those on death row in the USA, and scores of
those who have already been executed, were themselves subjected to sexual
and physical abuse when they were children. In numerous cases, the jury
were left without a full picture of the abuse or its ramifications. An
example is the case of Gary Etheridge, executed in Texas in 2002. He had
been physically abused by his father, and was repeatedly raped and
physically abused by an older brother starting from when he was six years
old. Gary Etheridge began using drugs and getting into trouble with the
law from the age of 12. He attempted suicide on at least two occasions,
once after being raped while serving a prison term for a prior,
non-violent offence. His severe depression, when left untreated outside
prison, contributed to his self-medicating with illegal drugs and to
serious drug addiction. He was intoxicated on a combination of heroin and
cocaine when he sexually assaulted and murdered a 15-year-old girl. At his
trial for that murder, his lawyers were aware of the mitigating evidence
of his horrific upbringing, but chose not to present it. They feared that
this evidence could be used by the prosecutor to argue that Gary Etheridge
would be a future danger if allowed to live. Indeed at the 1990 trial, the
judge had referred to the defendant as a "piece of trash" and "a blight on
society".

Such language is reminiscent of that used by at least one Oklahoma
legislator who referred to child molesters as "monsters" and "less than
human" during the debates on the Oklahoma sex offender bill that was
passed in June 2006. As a Supreme Court Justice noted in 1972 in Furman v.
Georgia: "It is the poor, the sick, the ignorant, the powerless and the
hated who are executed." There are few more publicly vilified figures in
society today than those labelled as paedophiles. Justice Alito suggested
as much when he wrote that "I have little doubt that, in the eyes of
ordinary Americans, the very worst child rapists - predators who seek out
and inflict serious and emotional injury on defenceless young children -
are the epitome of moral depravity". The brief filed by the state
prosecuting authorities in nine states calling on the Supreme Court to
uphold the Louisiana law under which Patrick Kennedy was condemned to
death, referred to the "peculiar depravity manifested by those who rape
small children", and "a degree of manifest evil, that is qualitatively
distinct" in such cases.

Undoubtedly, child rape is a very serious crime with very serious
consequences. Undoubtedly, too, however, the links between trauma suffered
by individuals during childhood or later in life and their own propensity
to violence are complex and varied. So too are the causes of adult sexual
violence against children. Amnesty International does not seek to excuse
criminal violence, or to downplay the trauma suffered by child victims of
adult sexual violence. It merely seeks to end a punishment that is blind
to such complexity and diverts resources from efforts seeking to explain
violence and prevent its recurrence.

The death penalty not only runs the risk of irrevocable error, it is also
costly - to the public purse, as well as in social and psychological
terms. It has not been proven to have a special deterrent effect. It tends
to be applied discriminatorily on grounds of race and class. It denies the
possibility of reconciliation and rehabilitation. It promotes simplistic
responses to complex human problems, rather than pursuing explanations
that could inform positive strategies. It prolongs the suffering of the
murder victim's family, and extends that suffering to the loved ones of
the condemned prisoner. It consumes resources that could be better used to
work against violent crime and assist those affected by it. It is a
symptom of a culture of violence, not a solution to it. It is an affront
to human dignity.

Amnesty International urges the USA to recognize that there is an evolving
global standard against the death penalty - for any crimes, however
serious - as evidenced by the UN General Assembly resolution in 2007
calling for a worldwide moratorium on executions with a view to abolition
and appealing to states that still retain the death penalty "to
progressively restrict the use of the death penalty and reduce the number
of offences for which it may be imposed".

Amnesty International reiterates its call for a total moratorium on
executions in the USA, at state, federal and military level. Legislatures
and executive offices around the country should work for abolition of the
death penalty, as a necessary measure for the protection of fundamental
human rights. To use Justice Alito's words, the death penalty is an
evolutionary dead end.

INTERNATIONAL SECRETARIAT, 1 EASTON STREET, LONDON WC1X 0DW, UNITED
KINGDOM

(source: Amnesty International)

**************************

No death penalty for child rape----The Supreme Court made the right
decision by rejecting execution for nonlethal crimes

.

In concluding that capital punishment can be imposed constitutionally only
for the crime of deliberate murder, the Supreme Court wisely has prevented
a further expansion of a penalty that is already imposed freakishly and in
a discriminatory way. The country, and the court, should be focusing on
ending the death penalty, not devising new opportunities to render it.

In a 5-4 decision, the court on Wednesday overturned the death sentence of
a Louisiana man convicted of the aggravated rape of his 8-year-old
stepdaughter. The crime committed by Patrick Kennedy was bestial, but it
has been 44 years since anyone was executed for a rape in which the victim
wasn't killed.

And for good reason: In 1977, the Supreme Court overturned a death
sentence with a ruling that seemed to end the practice of executing
rapists. "Rape is without doubt deserving of serious punishment," Justice
Byron R. White wrote, "but in terms of moral depravity and of the injury
to the person and to the public, it does not compare with murder, which
does involve the unjustified taking of human life."

The reason the Louisiana case even came to the current court was that only
four justices in the 1977 ruling thought that capital punishment was
constitutional in murder cases but always unconstitutional in rape cases.
A 5th, Justice Lewis Powell, offered the narrower rationale that "death is
disproportionate punishment for the crime of raping an adult woman,"
suggesting that child rapists might still be constitutionally sentenced to
death. Seizing on that implication, Louisiana and 5 other states passed
laws allowing for the execution of child rapists.

Surprisingly, the majority in this week's ruling accepted the notion that
the 1977 decision didn't apply to the rape of a child. This was key,
Kennedy said, because it showed that the states were free after 1977 to
make child rape a capital offense -- yet only a few did so. That was
evidence, Kennedy said, that the practice violated "evolving standards of
decency," the yardstick the court uses to decide whether a punishment is
cruel and unusual. On this point, the dissenters have the better argument.
Writing for himself and 3 other justices, Justice Samuel A. Alito
suggested that so few states acted because the 1977 ruling dissuaded
legislators from acting for fear the court would overrule them.

One reason Wednesday's decision is so welcome is that, had it gone the
other way, some states would have rushed to follow Louisiana by making
child rape -- and perhaps other nonfatal assaults -- subject to the death
penalty. Whatever the lapses in Kennedy's logic, the court's decision
rightly forecloses that grim possibility and contains the reach of this
abhorrent punishment.

(source: Opinion, Los Angeles Times)

********************************************

Anger and Restraint


For the law to be just, it must temper societys anger over even the most
horrible acts with decency and restraint. The Supreme Court exemplified
that principle on Wednesday, striking down the death penalty for the rape
of a child. While acknowledging the horror of the crime, Justice Anthony
Kennedys majority opinion drew on widely shared standards of decency,
constitutional law and real-world impact to explain why the Constitution
forbids punishing it with death.

The 5-to-4 ruling also laid down a critical standard: in cases of crimes
against individuals (which excludes treason and espionage) the death
penalty can be applied only when the victim's life is taken. That rule
should deter efforts to extend the use of capital punishment.

Justice Kennedy wrote that defendant Patrick Kennedy's rape of his
8-year-old stepdaughter was an act "that cannot be recounted in these
pages in a way sufficient to capture in full the hurt and horror
inflicted." But the Eighth Amendment, he noted, requires that a penalty be
a "graduated and proportioned" response.

One way the court assesses proportionality is by looking at how society
treats particular crimes. For child rape, he argued, there is a consensus:
44 states do not make it a capital crime. Louisiana is the only state that
has sentenced anyone to death for child rape since 1964.

The court must also use its own judgment, based on its reading of the
Constitution and of its own precedents. Justice Kennedy argued that
morally, the state's taking of a life is unique in its severity and
irreparability. It should, he concluded, be limited to homicide, an act
that is in its own category of moral depravity.

The ruling also argued that it was not in the interest of a child victim
to be dragged into a capital case as the complaining witness, and to
compel that child to spend years trying to help the state put someone to
death.

Justice Kennedys opinion had a proper and welcome skepticism about the
death penalty in general, warning that "when the law punishes by death, it
risks its own sudden descent into brutality, transgressing the
constitutional commitment to decency and restraint." We hope the court
will one day declare the death penalty unconstitutional in all cases.
Until it does, the increasing limits it is placing on capital punishment
is an encouraging development.

The court showed far less prudence in a second ruling on Wednesday,
reducing the punitive damages award against Exxon Mobil for the 1989 Exxon
Valdez oil spill from $2.5 billion to roughly $500 million. Conservatives
complain loudly and often about liberal judicial activism. But this
decision invoked a rule that it made up from whole cloth: that in maritime
cases, punitive damages should be limited to the amount of compensatory,
or "actual," damages a defendant has to pay.

The problem with the rule is not that it is judge-made, but rather that it
subverts the purpose of punitive damages, which have a venerable place in
the law. They are meant to punish and deter. A $500 million award for what
the appeals court called "egregious" conduct, against a company that
earned more than $40 billion last year, is unlikely to do either.

(source: Editorial, New York Times)

***************************************************

Lawmakers vow to execute child rapists

Supreme Court overturned efforts of 12 states to condemn child rapists to
death

Lawmakers are vowing to continue writing law condemning favoring death
sentence

McCain: "an assault on law enforcement's efforts to punish these heinous
felons"

Angry politicians vowed to keep writing laws that condemn child rapists to
death, despite a Supreme Court decision saying such punishment is
unconstitutional.

Texas Lt. Governor David Dewhurst supported the get tough "Jessica's Law"
in Texas.

"Anybody in the country who cares about children should be outraged that
we have a Supreme Court that would issue a decision like this," said
Alabama Attorney General Troy King, a Republican. The justices, he said,
are "creating a situation where the country is a less safe place to grow
up."

The court's 5-4 decision Wednesday derailed the efforts of nearly a dozen
states supporting the right to kill those convicted of raping a child --
and said execution was confined to attacks that take a life and to other
crimes including treason and espionage.

At issue before the high court was a Louisiana case involving Patrick
Kennedy, sentenced to die for raping his 8-year-old daughter in her bed,
an assault so severe she required surgery.

In his majority opinion, Justice Anthony Kennedy wrote "the death penalty
is not a proportional punishment for the rape of a child," despite the
horrendous nature of the crime.

Republican Louisiana Gov. Bobby Jindal called the ruling "incredibly
absurd," "a clear abuse of judicial authority" and said officials will
"evaluate ways to amend our statute to maintain death as a penalty for
this horrific crime."

Oklahoma officials said they, too, weren't ready to give up, and would
"certainly look at what options we have," state senator Jay Paul Gumm
said. "I think the people of Oklahoma have spoken loudly that this is one
of the most heinous of crimes."

Even White House hopefuls joined the fray. Republican John McCain called
the ruling "an assault on law enforcement's efforts to punish these
heinous felons for the most despicable crime." Democrat Barack Obama said
there should be no blanket prohibition of the death penalty for the rape
of children if states want to apply it in those cases.

44 states prohibit the death penalty for any kind of rape, and at least
four states besides Louisiana permit it for child rape -- Montana,
Oklahoma, South Carolina and Texas. There's disagreement over the status
of a Georgia law permitting execution for child rape, although Justice
Kennedy said in his ruling that it was still in effect.

Following the ruling, all become unconstitutional.

In Texas, Republican Lt. Gov. David Dewhurst said Wednesday that most
Texans believe the death penalty is "an appropriate form of punishment for
repeat child molesters. Our top priority remains protecting our most
precious resource -- our children."

But the Texas Association Against Sexual Assault, a nonprofit victim
advocacy group representing 80 rape crisis centers, applauded the ruling.

"Most child sexual abuse victims are abused by a family member or close
family friend," the group said in a statement. "The reality is that child
victims and their families don't want to be responsible for sending a
grandparent, cousin or long time family friend to death row."

Nationwide, only 21 men have been sentenced to death for sexually abusing
children -- both in Louisiana. The 2nd case involves a man convicted of
repeatedly raping a 5-year-old girl. Both men will get new sentences.

Several states, including Missouri, Alabama and Colorado had been
considering similar laws.

In South Carolina, Republican Attorney General Henry McMaster said states
could ultimately fight Wednesday's ruling by waiting for a change in the
makeup of the Supreme Court, or by getting legislatures to redo death
penalty laws.

Legal experts were divided on the potential success of such tactics.

According to Douglas Berman, a law professor at Ohio State University, the
justices' ruling appears ironclad. "In the absence of death, the death
penalty is off the table," he said. The court, he said, "could have left
open the possibility of revamping child rape laws, by age for example, but
it did not."

Law professor Deborah Denno of Fordham University wasn't so sure. It could
be possible to argue for the application of the death penalty against
attackers who "intended to kill" their victims, but didn't, she said. Or
those who assault especially young children, such as toddlers.

(source: CNN)

*********************(ideological death penalty-related item)


Justices Rule for Individual Gun Rights


The Supreme Court declared for the first time on Thursday that the
Constitution protects an individuals right to have a gun, not just the
right of the states to maintain militias.

5-to-4 decision, said the Constitution does now allow "the absolute
prohibition of handguns held and used for self-defense in the home." In so
declaring, the majority found that a gun-control law in the nations
capital went too far in making it nearly impossible to own a handgun.

The decision upheld a federal appeals court ruling that the District of
Columbia's gun law, one of the strictest in the country, went beyond
constitutional limits. Not only did the 1976 law make it practically
impossible for an individual to legally possess a handgun in the District,
but it spelled out rules for the storage of rifles and shotguns.

But the long-awaited decision did not necessarily mean that gun laws from
coast to coast, many of them far less restrictive than Washington's, would
be swept aside.

Joining Justice Scalia were Chief Justice John G. Roberts Jr. and Justices
Clarence Thomas, Anthony M. Kennedy and Samuel A. Alito Jr.

A dissent by Justice John Paul Stevens asserted that the majority "would
have us believe that over 200 years ago, the framers made a choice to
limit the tools available to elected officials wishing to regulate
civilian uses of weapons." Joining him were Justices David H. Souter, Ruth
Bader Ginsburg and Stephen G. Breyer.

The high court's ruling was the first since 1939 to deal with the scope of
the Second Amendment, and the first ever to directly address the meaning
of the amendments ambiguous, comma-laden text: "A well regulated Militia,
being necessary to the security of a free State, the right of the people
to keep and bear Arms, shall not be infringed."

The court concluded that the amendment protects an individual right to
bear arms, but it also said that the right is not absolute, opening the
door for more fights in the future. Lawmakers across the country may look
to the decision as a blueprint for writing new legislation to satisfy the
demands of constituents who say there is too much regulation of firearms
now, or too little, depending on the sentiments in their regions.

In March 2007, Washington city officials expressed disappointment and
outrage when the United States Court of Appeals for the District of
Columbia Circuit overturned the city ordinance. The Supreme Court ruling
is sure to prompt work on a new ordinance that can withstand high court
scrutiny.

The last time the Supreme Court weighed a case involving the Second
Amendment, in 1939, it decided a narrower question, finding that the
Constitution did not protect any right to possess a specific type of
firearm, the sawed-off shotgun.

By contrast, the issues in the District of Columbia case seemed much more
"mainstream," if that term can be used in reference to gun-control issues.
When the justices announced on Nov. 20 that they were accepting the case
of District of Columbia v. Heller, No. 07-290, they indicated that they
would go to the heart of the long debate.

The question, they said, is whether the districts restrictions on firearms
"violate the Second Amendment rights of individuals who are not affiliated
with any state-regulated militia but who wish to keep handguns and other
firearms for private use in their homes."

Dick Anthony Heller, a security guard who carries a handgun for his job
protecting federal judiciary offices, challenged the District of Columbias
law after his request for a license to keep his gun at home was rejected.

When the case was argued before the justices on March 18, Mr. Hellers
lawyer, Alan Gura, did not assert that the Second Amendment precluded any
kind of ban related to gun possession. He said that a ban on the shipment
of machine guns and sawed-off shotguns would be acceptable, and in answer
to a question from the justices, so, too, might be a prohibition on guns
in schools. Some of the justices signaled during arguments that they
thought the Districts near-total ban on handguns went too far.

A legislature "has a great deal of leeway in regulating firearms," Mr.
Gura argued, but not to the extent of virtually banning them in homes.

The Washington law not only established high barriers to the private
possession of handguns, it also required that rifles and shotguns be kept
either in a disassembled state or under a trigger lock.

Walter Dellinger, the lawyer who argued for the district on March 18,
asserted that "the people" and "the militia" were essentially the same,
and that the Second Amendment gave people the right to bear arms only in
connection with their militia service.

Solicitor General Paul D. Clement, representing the federal government,
argued on behalf of the individual-rights position, which has been the
Bush administrations policy. But he said that the appeals court had also
gone too far in overturning the ordinance and that the right to bear arms
was always subject to "reasonable regulations."

(source: New York Times)

************************

Right to Face Accusers Is Affirmed in Unusual Case----Witness Was Murder
Victim


The Supreme Court yesterday threw out the conviction of a man accused of
murdering his ex-girlfriend because the defendant could not challenge an
incriminating account she gave the police weeks before her death.

The 6 to 3 ruling drew howls from domestic violence opponents who said the
decision could lead to perverse situations in which criminals would reap a
legal "windfall" after killing their victims.

The case revolved around the Sixth Amendment, which affords people the
bedrock right to confront and cross-examine witnesses who give testimony
against them. At issue is whether defendants forfeit their confrontation
rights by doing harm to people whose statements are introduced in judicial
proceedings.

Typically, courts have carved out few Sixth Amendment exceptions, giving
leeway only to deathbed statements and to accounts by witnesses who are
kept away from the courthouse by defendants seeking to thwart the judicial
process.

The facts before the court were stark. Dwayne Giles shot his ex-girlfriend
Brenda Avie six times in September 2002, killing her and then fleeing the
scene. At trial, Giles argued that he fired the weapon out of fear, in
self-defense and with his eyes closed. Avie's wounds indicated that she
was turned to her side and lying on the ground during at least part of the
attack, according to the court record.

3 weeks before her death, Avie tearfully told a police officer responding
to a domestic violence call that Giles had choked her and threatened to
slash her with a knife. The trial court allowed the statements to be
introduced at Giles's murder trial under a California law that allows
juries to hear such threats when a witness is unavailable to testify in
person.

The California Supreme Court later upheld Giles's conviction, reasoning
that he had forfeited his Sixth Amendment right to confront witnesses by
killing his ex-girlfriend and rendering her unable to appear in court.

But a majority of justices at the Supreme Court yesterday wiped away the
conviction and sent the case back to lower courts.

"Domestic violence is an intolerable offense that legislatures may choose
to combat through many means," Justice Antonin Scalia wrote for the
majority. "But for that serious crime, as for others, abridging the
constitutional rights of criminal defendants is not in the State's
arsenal."

Scalia added that the lower courts were free to consider whether in
shooting Avie, Giles may have intended to dissuade her from notifying
authorities about the abuse, a factor that should be considered as part of
the Sixth Amendment analysis.

Activists who decry more than 1,500 deaths and 2 million injuries each
year stemming from domestic violence expressed disappointment in the
opinion. Officials at the Family Violence Prevention Fund warned the
decision could make it less likely that victims will reach out to
authorities for help. In many such cases, they said, the victim is the
lone witness to a crime.

Justice David H. Souter, joined by Justice Ruth Bader Ginsburg, agreed
with Scalia's historical analysis but said prosecutors could introduce
evidence that defendants had engaged in a pattern of domestic violence as
a substitute for their intent, perhaps opening the door to a finding that
the alleged abuser had forfeited his right to confront a missing witness.

In a toughly worded dissent, Justice Stephen G. Breyer said the majority
was overanalyzing the thin historical record and overcomplicating the
analysis.

"The defendant here knew that murdering his ex-girlfriend would keep her
from testifying; and that knowledge is sufficient to show the intent that
law ordinarily demands," Breyer wrote. He was joined by Justice John Paul
Stevens and Anthony M. Kennedy.

Richard D. Friedman, a law professor at the University of Michigan who
filed a court brief supporting the conviction, said yesterday's ruling was
"very unfortunate." Friedman predicted that the decision would usher in a
wave of litigation over the "psychology of the abuser," the extent of
domestic abuse and whether the abuser attempted to isolate the victim from
police, a factor that could erode the Sixth Amendment protection.

(source: Washington Post)

*************************************

Abolish the Death Penalty Now!


"The death penalty will be abolished. It's just a matter of time now." So
said Mike Farrell, star of M*A*S*H and a leading opponent of the death
penalty, in a recent visit to Santa Fe. Such words a decade ago might have
rung hollow. But now they strike a loud chord. New Jersey's abolishing the
death penalty this past January fills the air with hope.

We draw hope, too, from Illinois, where a few years ago the governor put a
moratorium on executions because he regarded the process of capital
punishment as "arbitrary, capricious and therefore immoral." And of the
167 in his state condemned to die, the governor commuted the sentences,
most to life without parole. My own state, New Mexico, may be next in
putting this barbaric injustice behind us.

New Mexico -- a land long ago roamed by fierce conquistadors and in the
1800s full of hangin' trees and frontier justice and today home to the
nuclear industry- last conducted an execution in 2001. It was the 1st in
41 years. Today 2 men languish on death row, one at the remote state
prison not far from where I live.

The state legislature nearly has the votes to put executions to an end. I
and others have met with Governor Bill Richardson and urged him to sign.
But each year he employs a procedural tactic to keep the bill in limbo.
Should he leave office early next year to accept a role in the new
presidential administration, Lieutenant Governor Diane Denish has promised
to affix her name.

Only the U.S. among the Western nations puts criminals to death. More than
40 countries have abolished the practice since 1976. During those same 32
years the U.S. has executed 1100. At the moment, there are 3,263 prisoners
nationwide waiting to die.

A breeze of hope billowed recently as the Supreme Court "investigated" the
humaneness of lethal injection -- this in an air of marked public opinion
According to polls, most Americans support alternatives to the death
penalty. Most favor life without parole along with restitution to the
victims' families. But the breeze of hope passed; last month executions
resumed.

Our national barbarity strikes me most sharply whenever I travel to
Europe. There the people I meet loquaciously express dismay at American
notions of justice. Especially in Italy. Catholic groups in Italy
regularly hold conferences and prayer vigils against our capital
punishment. Every time someone is executed, the lights of the Coliseum in
Rome are illuminated all night. Here is a symbolic gesture to set us
blushing, a censure lighting the dark: namely, American jurisprudence
bears resemblance to the savage Roman Caesars'.

With their dour appraisal, I readily subscribe. Capital punishment can
claim nothing to commend it. It will not bring healing or justice or
restitution.

It offers no hope for a nonviolent society. It reinforces the
heart-rending cycle of violence; it lays the burden of yet another murder.
Execution gives death as social purpose ever greater sway. When a nation
decides who lives, who dies, it becomes small potatoes indeed for it to
manipulate who enjoys full civil rights, who doesn"t, who partakes of the
fat of the suburbs, who subsists in the crumbling cities. And of course
who goes off to war to fatten the American way of life, and who remains
home to pluck the fat fruit and pursue affluent careers.

More, capital punishment is freighted with inconsistencies. Behind it lies
an illogical maxim: we kill those who kill to show that killing is wrong.
If we really believed that killing was wrong, the state would set an
example; official killing would be banished.

Capital punishment is freighted too with the burden of racism. In cases in
which the murderer was found and executed, about 80 % of the murder
victims were white. Nationally, 50 % of murder victims are white. There
emerges a chilling picture. The whiter one's victim, the more likely the
court will consign the murderer to death row.

Capital punishment takes down the innocent. Since 1973, 123 innocent men
and women have been released from death rows across the country.
Researchers Radelet and Bedau found 23 cases since 1900 where innocent
people were executed.

Research also indicates that the death penalty fails at deterrence. In
fact, states without the death penalty have lower homicide rates than
states with the death penalty. And applying principles of accounting
raises the specter of cost. A 1993 Duke University study showed that the
death penalty in North Carolina costs 2.16 million dollars more per
execution than a non-death penalty murder trial. Recently, it was
announced that the price of California's brand new death row will double
to over $400 million.

The need for revenge and closure, insists the media, makes execution
necessary. Victims" families will rest easier, they say, when the murderer
breathes his last. But such a notion is not widely true. Many families of
victims see no use in putting the assailant to death, and many oppose
executions publicly.

One coalition of them, "Murder Victims' Families for Reconciliation,"
tours the nation regularly, points out inconsistencies and speaks out
against it. They declare that killing those who killed their loved ones
will not end the violence. It will, they say, mitigate violence not a bit.
(see: www.mvfr.org)

The media implies, too, a religious justification for the death penalty.
But again they"re wrong -- a large bloc of religious groups opposes the
death penalty. "People of Faith Against the Death Penalty," an interfaith
organization that seeks the repeal of the death penalty in North Carolina,
(see: www.pfdp.org), led by my brother Steve, is one of many grassroots
organizations that bring together a variety of religious congregations to
take a stand for life.

Catholic Social Teaching, in particular, categorically forbids Catholics
from supporting the death penalty. "We maintain that abolition of the
death penalty would promote values that are important to us as citizens
and as Christians," the US. Bishops' Conference has said.

Abolition sends a message that we can break the cycle of violence, that we
need not take life for life, that we can envisage more humane and more
hopeful and effective responses to the growth of violent crime. Abolition
is also a manifestation of our belief in the unique worth and dignity of
each person Abolition is further testimony to our conviction that God is
indeed the Lord of life. Abolition is most consonant with the example of
Jesus who both taught and practiced the forgiveness of injustice and who
came "to give his life as a ransom for many."

It is incumbent, I believe, on anyone who claims to be Christian to regard
the last sentence as a kind of fundament, a kind of bottom line.

Jesus opposed all killings. He taught nonviolence, forgiveness, justice
and reconciliation. When religious leaders condemned a woman in the court
of the Temple (a condemnation according to the Law, no less), a frenzied
mob formed, reaching for stones, ravenous for blood. Jesus intervened, the
air charged with peril, and dared say to them: "Let the one without sin be
the first to throw a stone at her."

The spell broken, they drifted away. We're inclined to say admiringly,
Jesus saved her life. But more, with a sentence, he destroyed capital
punishment's legitimacy. He struck the stone -- the pyre, the noose, the
chair, the firing squad, the death chamber -- from authority's hands.

But authorities, those who deploy death in service to their lofty status,
do not abandon their trump card so easily. Jesus sided with the condemned,
and in the end was forced to join them. He himself was led off to the via
dolorosa of capital punishment. And as for the law, there was nothing
irregular in the legality of the proceedings. Not many troubled
consciences. An open and shut case.

Officials, says Mike Farrell, carry on capital punishment to obscure the
system's corruption. Given an unvarnished look -- at the injustice, the
shadiness, the arbitrary sentences, the capricious drug laws, the
imposition of unwarranted suffering, the draconian treatment of
immigrants, the kept judges and prosecutors and police forces -- the
public would blanch and recoil. It keeps a lid on the whole messy business
of state punishment.

People of faith regard matters without ambiguity and declare some patent
truisms: God sides with all victims; God does not want us to execute one
another; God calls us to be people of nonviolence; God invites us to live
and let live.

We, like Jesus, should feel free to side with the condemned, forgive those
who hurt us, who injure or kill those we love, and in this way put an end
to wheel of violence that keeps going around. We should say freely: the
death penalty is immoral, evil and sinful.

Mike Farrell says he's optimistic. "I'm optimistic, too," Richard Dieter
of the Death Penalty Information Center told me.

It will be abolished within ten years. It's not going to happen with one
full swoop from the Supreme Court, or the U.S. president, or the Congress.
It's going to be a state-by-state process. People have to be convinced, so
it's going to require a lot of grassroots education, organizing and
action. The revelation of the innocence cases and the DNA evidence has
opened the door to a new understanding of the death penalty. Plus there
are fewer executions and a smaller number of people on death row than in
the past, and all of this is happening under a conservative
administration. For the 1st time, the debate has moved. If you combine
that with an international movement against the death penalty, it may be
well that it's time is coming. There's an inevitably of the stream of
human rights which is gathering momentum.

These are the currents we're trying to get moving in New Mexico. We've
begun organizing a march, set for December 6th, from the Capitol building
in Santa Fe to the death-row prison. There we'll hold a prayer vigil to
put executions to an end.

And before that, some five months prior on August 1st, we'll host Sister
Helen Prejean, author of Dead Man Walking, outspoken critic of the death
penalty. She will join our annual Hiroshima day disarmament vigil the next
day at Los Alamos where we will don sackcloth and ashes to repent of the
mortal sin of war and nuclear weapons. (See: www.paxchristinewmexico.org)

Please come if you can. But by all means, let's push for an end to
state-sanctioned murder, once and for all.

(source: John Dear is a Jesuit priest, peace activist and author of 25
books, including "Transfiguration," "The Questions of Jesus," and "Living
Peace" (Doubleday). He writes a weekly column for the National Catholic
Reporter, and was nominated in January for the Nobel Peace Prize by
Archbishop Tutu. John's autobiography, "A Persistent Peace," (Loyola
Press, with a foreword by Martin Sheen), will come out on August 1st, can
be ordered now at www.amazon.com; Common Dreams)