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Posted on Apr 25, 2008 in Across the US, Government, The Courts

Where ‘States Rights’ Sometimes Get Complicated

I read an interesting op-ed today in the Washington Times titled “Child Rapist” by Horace Cooper, a Senior Fellow at the American Civil Rights Union.

The op-ed essentially went over a case that was recently heard before the Supreme Court, Kennedy v. Louisiana, and asked:

who should decide the punishment for a crime, the legislature or the courts? In particular, when determining what crimes merit the death penalty, should state governments have a say or should this power be left to judges?

In Kennedy v. Louisiana, the State of Louisiana was being challenged by Patrick Kennedy, a man who was sentenced to death for the rape of his 8-year-old stepdaughter. It’s important to note that before he was sentenced, a plea deal was on the table that would have removed the possibility of execution.

Kennedy declined the plea bargain and went to trial. He was found guilty and was sentenced to death.

After Kennedy’s sentence, his legal team used the Eighth Amendment as a backbone for their appeal. They argued that sentencing someone to death for something that didn’t result in the death of the other party was in fact cruel and unusual punishment.

While his legal team saw it that way, Kate Bartholomew, a New Orleans prosecutor saw things from a different perspective, arguing in a article:

A lot of people think there should not be the death penalty [in this case] because the child survives…In my opinion the rape of a child is more heinous and more hideous than a homicide.”

The Supreme Court had already ruled on a similar case in 1977, Coker v. Georgia, where they argued that the death penalty an excessive punishment for someone convicted of rape.

Even though the Court ruled that the death penalty wasn’t an appropriate form of punishment for rapists, in 1995 the Louisiana Legislature passed a law that would allow executions for those convicted of raping a child under the age of 12.

Knowing the previous ruling of the Court, the State of Louisiana argued that Coker v. Georgia only applied to adults, since it was only those circumstances that the Court considered.

This is something that the Court is going to have to consider in their final decision for a variety of reasons.

Cooper correctly points out:

Tragically there are many voices in the criminal-law community who argue that these types of crimes — due to their very nature — perpetuate when the victims end up engaging in similar behavior.

Considering that very point could create a tough decision making process for the court.

However, I think it is those complexities that highlight what Horace Cooper is trying to get at – these should be decisions that the States should be responsible for making, not the courts.

While I may have differing opinions in terms of what should constitute the death penalty, I completely agree with Cooper’s argument.

Members of the legislature are elected to represent the best interests of the people in their districts (or in this case, parishes). It’s their job to make the laws that they feel are appropriate for certain actions, based on what their constituency would want.

Making these determinations shouldn’t be the role of the higher courts. Their sole purpose should be to enforce the enacted laws, not try and create new ones, or new precedent based on one case.

Cooper concludes:

Upholding Kennedy’s sentence is clearly of first primacy, but the Roberts Court should go further. It should overturn Coker and thereby clearly return to state governments the power to determine what punishment fits the crime.


Even though I don’t necessarily think that the death penalty is the best sentence (I’m more of an eye-for-an-eye guy, so he’ll get what he deserves in prison) that should be a decision each state makes, not a small group of ideological judges.

If the Court can successfully reject this case and over-turn Coker, I think we’ll be one step closer to having our government operate in the vision of our founding fathers.

I commend the American Civil Rights Union for speaking up about this case and clearly laying out what is really at stake here. If the court chooses to side with Patrick Kennedy and uphold the Coker decision, a wide window will be open for groups like the ACLU (which clearly opposes the letter of the law) and other organizations to challenge the laws that were made by the legislatures, that were elected by the people.

If our elected officials don’t even have authority in terms of making laws based on the concerns and wishes of the vast majority, can we still call this a democracy? Sure, we elect them, but if their decisions mean nothing, what good are they?