A Case for the Criminalization of Civil Rights Violations by State Actors

I think that it is imperative that there be some recourse for citizens to seeks redress for the wrongs do to them by state actors. Since the courts have created a unfounded legal theory of Sovereign Immunity ( I believe that Sovereign Immunity is a abrogation of the first amendment right to petition for redress.) the state as a whole can not be held accountable for the misdeeds of its actors the actors themselves must be held accountable. This has not been normal feature of US common law. Typically state actors are shield from any consequences for their violation of civil rights by virtue for their acting for the State. Only in the last century has the exclusionary rule begun to prevent the government from simultaneously protecting the violators of civil right while benefiting from the their misdeeds. The theory being that the actor's misdeeds are his alone when looking whether the evidence should be admitted and that excluding it inappropriately hurts the state. This is a positive step but does not encompass many violation which either result from the violation of state and local laws or have nothing to do with the collection of evidence. Nor does it apply any real criminal penalties against those who commit civil rights offenses.

I think that all violations of civil rights by state actors should be criminalized. Unintentional or accidental violations should be misdemeanors assuming the violator acted without reckless indifference to the civil rights he violated. Intentional violations or those committed with reckless indifference should be felonies. Systematic violations and conspiracy to violate the civil rights should be considered treason for state actors.

I also think that all evidence collected in violation of any applicable law should be inadmissible at every judicial level.

Breyer is a Fool

He makes the assertion that Madison added the 2nd Amendment to the Constitution so as to promote its ratification by the States. This means he was yielding to another position thus his own position is irreverent as he agreed that a different position was acceptable. Justice Bryer is asserting that we can in effect undo compromises by choosing one side and considering what they might have wanted had they not been forced to make the compromise. Thus since Madison might not have wanted to prohibit the Federal government from regulating the possession of arms, the measure he created to that effect is invalid.

Also, this focus on the practices of local and State law enforcement at the time of the founding to understand the meaning of the Bill of Rights is misplace. The Bill of Rights did not apply to the States at the founding thus local and State law enforcement practices will never be found to be bound by them. In essence the assertion is that protections of the Bill of Rights only apply now if the States where bound by them at the founding and since none were, the protections are nullified.

I may be fair to look at how Bill of Rights restricted the practices of the Federal government at the founding as it was the only party bound by those protections at that point in time. But, since in many cases Federal actions are justified necessary to comply with the authority of the States to act without the restraint of the Constitution, one must be very careful to see if those actions are supported solely on Federal power or if they depend on the power of the States. If they depend on the power of the States that foundation was removed with the 14th Amendment and thus those action are no longer valid.

The Justice's main assertion is that because one party to the communal creation of a legal document, which embodies many compromises, had a personal view that other measures or outcome would have preferable the court may use those personal views to change the meaning of a law. Thus any law maybe held to mean anything the court wishes as long as someone involved in its creation would have preferred the outcome put forth by the court.

I believe that by showing that Madison compromised with the inclusion of the 2nd Amendment it proves that the amendment means not what Madison would have wished it to but what those he appeased with it would have understood it to mean. I believe that first and foremost law mean what they say. What law makers intend or wanted but did not do is irrelevant. Only what they did matters and their thoughts and opinions matter only so far as they are needed to understand what was actually enacted.

Supreme Blunders

Virginia v. Moore

This is a case no whether evidence obtained in violation of states law is inadmissible in court as per the protections of the 4th Amendment.

“Under state law, the officers should have issued Moore a summons instead of arresting him. Driving on a suspended license, like some other misdemeanors, is not an arrestable offense except as to those who “fail or refuse to discontinue” the violation,and those whom the officer reasonably believes to be likely to disregard a summons, or likely to harm themselves or others. Va. Code Ann. §19.2–74 (Lexis 2004). The intermediate appellate court found none of these circumstances applicable, and Virginia did not appeal that determination. See 272 Va., at 720, n. 3, 636 S. E. 2d, at 396–397, n. 3. Virginia also permits arrest for driving on a suspended license in jurisdictions where “prior general approval has been granted by order of the general district court,” Va. Code Ann.§46.2–936; Virginia has never claimed such approval was in effect in the county where Moore was arrested.”

Here the court clearly shows that the arrest and search of the accused was in violation of State law. I in general how that the 4th Amendment requires a warrant in all searches. But even holding warrantless searches constitutional It is hard to see how evidence obtained through criminal activity, as any violation of the law or civil right must justly be held to, can be presented as evidence in court. To allow it as evidence is to render the protections of the 4th Amendment meaningless as they may be violated without penalty.

“Moore was charged with possessing cocaine with the intent to distribute it in violation of Virginia law. He filed a pretrial motion to suppress the evidence from the arrest search. Virginia law does not, as a general matter, require suppression of evidence obtained in violation of state law. See 45 Va. App., at 160–162, 609 S. E. 2d, at 82 (Annunziata, J., dissenting). Moore argued, however, that suppression was required by the Fourth Amendment . The trial court denied the motion, and after a bench trial found Moore guilty of the drug charge and sentenced him to a 5-year prison term, with one year and six months of the sentence suspended.”

I find the defendants logic here compelling. The absence of a Virginian law prohibiting evidence obtained in violation of state law is unnecessary as the application of the 4th Amendment to the States through the 14th Amendment should have that effect. Also the defendant bench trial is in my opinion a violation of his 5th Amendment guarantee of a trial by jury.

“The Fourth Amendment protects “against unreasonable searches and seizures” of (among other things) the person. In determining whether a search or seizure is unreasonable, we begin with history. We look to the statutes and common law of the founding era to determine the norms that the Fourth Amendment was meant to preserve. See Wyoming v. Houghton, 526 U. S. 295, 299 (1999) ; Wilson v. Arkansas, 514 U. S. 927, 931 (1995) .”

A look at history almost always signals an attempt to abridge the plain meaning of a statute or protection. On its face the 4th Amendment requires warrants for a lawful search nothing the court presents with contradict this.

In Wyoming v. Houghton it was held that the police my search the property of a second person as the result of a probable cause search of a vehicle and hold the possessor of the vehicle liable for the items found in possession of another. It contains this reasoning “The Court concluded that the Framers would have regarded such a search as reasonable in light of legislation enacted by Congress from 1789 through 1799–as well as subsequent legislation from the Founding era and beyond–that empowered customs officials to search any ship or vessel without a warrant if they had probable cause to believe that it contained goods subject to a duty.”. That there existed historical laws which may have violated the protection in question does not justify additional violation using some derived form some extrapolated justification for the initial violation. The court then expands the tiny crack created by allowing warrantless customs searches to allow any sort of warrantless search one might wish. This is an example of why even the most logical and minor of exceptions to any right or protection must be vigorously opposed because they act as gangrene dooming the limb and the body to death if not removed.

Wilson v. Arkansas deals with whether in the process of executing a warrant searchers must knock and announce their presence. I see no such requirement in the 4th Amendment. Unless an additional State law created such a requirement, and there is no evidence of that, I believe the the court ruled correctly. Though the state in engaged in criminal activity in acquiring the evidence that lead to the warrant I find this objectionable.

“We are aware of no historical indication that those who ratified the Fourth Amendment understood it as a redundant guarantee of whatever limits on search and seizure legislatures might have enacted.² The immediate object of the Fourth Amendment was to prohibit the general warrants and writs of assistance that English judges had employed against the colonists, Boyd v. United States, 116 U. S. 616, 624–627 (1886) ; Payton v. New York, 445 U. S. 573, 583–584 (1980) . That suggests, if anything, that founding-era citizens were skeptical of using the rules for search and seizure set by government actors as the index of reasonableness.”

The clear explanation of this is that during the founding era the 4th Amendment applied to only the Federal government. It only became a redundant guarantee with the adoption of the 14th Amendment significantly later thus the opinion of the founders about the effect of the 4th Amendment on the States is meaningless as it was not at that time intended to effect them.

The citation of Boyd v. U S is odd citation as it is a strong advocation that the compulsion to present evidence that would be used to convict one's self is a violation of the 4th and 5th Amendments. It also make a strong case against “The practice had obtained in the colonies of issuing writs of assistance to the revenue officers, empowering them, in their discretion, to search suspected places for smuggled goods, which James Otis pronounced 'the worst instrument of arbitrary power, the most destructive of English liberty and the fundamental principles of law, that ever was found in an English law book;' since they placed 'the liberty of every man in the hands of every petty officer.'”. This practice is remarkably similar to the authority granted to law enforcement to conduct searches on the basis of probable cause.

Payton v. New York is also odd as it strongly states that arrests in a home must be authorized by warrant. It does focus on the sanctity of the house and the abuses of the English upon the colonists homes. But this does not lessen the protection of the individual himself nor his possessions but in fact buttresses those protection as they are not in anyway treated differently by the 4th Amendment. “It is thus perfectly clear that the evil the Amendment was designed to prevent was broader than the abuse of a general warrant. Unreasonable searches or seizures conducted without any warrant at all are condemned by the plain language of the first clause of the Amendment. Almost a century ago the Court stated in resounding terms that the principles reflected in the Amendment "reached farther than the concrete form" of the specific cases that gave it birth, and "apply to all invasions on the part of the government and its employees of the sanctity of a man's home and the privacies of life." Boyd v. United States, 116 U.S. 616, 630 .”

“Joseph Story, among others, saw the Fourth Amendment as “little more than the affirmance of a great constitutional doctrine of the common law,” 3 Commentaries on the Constitution of the United States §1895, p. 748 (1833), which Story defined in opposition to statutes, see Codification of the Common Lawin The Miscellaneous Writings of Joseph Story 698, 699, 701 (W. Story ed. 1852). No early case or commentary, to our knowledge, suggested the Amendment was intended to incorporate subsequently enacted statutes. None of the early Fourth Amendment cases that scholars have identified sought to base a constitutional claim on a violation of a state or federal statute concerning arrest. SeeDavies, Recovering the Original Fourth Amendment , 98 Mich. L. Rev. 547, 613–614 (1999);³ see also T. Taylor, Two Studies in Constitutional Interpretation44–45 (1969). ”

If by incorporate subsequently enacted statutes the court means does not allow exceptions created by later statutes I agree. If it means it was not meant to prevent the enactment of laws that on their face violate its protections I disagree in the strongest terms. It becomes nearly impossible to interpret any law if it does not mean what it says. Also the lack of challenges on some basis does not necessarily mean that such challenges could not have been made.

“ Of course such a claim would not have been available against state officers, since the Fourth Amendment was a restriction only upon federal power, see Barron ex rel. Tiernan v. Mayor of Baltimore, 7Pet. 243 (1833). But early Congresses tied the arrest authority of federal officers to state laws of arrest. See United States v. Di Re, 332 U. S. 581, 589 (1948) ; United States v. Watson, 423 U. S. 411, 420 (1976) . Moreover, even though several state constitutions also prohibited unreasonable searches and seizures, citizens who claimed officers had violated state restrictions on arrest did not claim that the violations also ran afoul of the state constitutions.⁴ The apparent absence of such litigation is particularly striking in light of the fact that searches incident to warrantless arrests (which is to say arrests in which the officer was not insulated from private suit) were, as one commentator has put it, “taken for granted” at the founding, Taylor, supra, at 45, as were warrantless arrests themselves, Amar, Fourth Amendment First Principles, 107 Harv. L. Rev. 757, 764 (1994).

There are a number of possible explanations of why such constitutional claims were not raised. Davies, for example, argues that actions taken in violation of state law could not qualify as state action subject to Fourth Amendment constraints. 98 Mich. L. Rev.,at 660–663. Be that as it may, as Moore adduces neither case law nor commentaries to support his view that the Fourth Amendment was intended to incorporate statutes, this is “not a case in which the claimant can point to ‘a clear answer [that] existed in 1791 and has been generally adhered to by the traditions of our society ever since.’ ” Atwater v. Lago Vista, 532 U. S. 318, 345 (2001) (alteration in original).”

The cases cited here seem very late cases to be used to establish the practice of law more than 100 or 200 years prior. To be sure opinions on that subject as presented but those are only representative on the authors' perception of the historical practice rather than representative of the practice itself.

It is likely in referencing United States v Di Re deals this section is meant “We believe, however, that in absence of an applicable federal statute the law of the state where an arrest without warrant takes place determines its validity. By one of the earliest acts of Congress, the principle of which is still retained, the arrest by judicial process for a federal offense must be 'agreeably to the usual mode of process against offenders in such State.” I believe to hold this as support for the nonapplicability is of the 4th Amendment is very odd as the law presented here placed additional restriction that arrests must comply with state protections as well as federal protections. How a law which add the former to the later could be used to invalidate the later is inconceivable to me.

One of the questions addressed by the Di Re court was the warrant less search of cars this practice was authorized as a prohibition measure and justified as substantially different for searchs of people or homes. “Assuming, however, without deciding, that there was reasonable cause for searching the car, did it confer an incidental right to search Di Re? It is admitted by the Government that there is no authority to that effect, either in the statute or in precedent decision of this Court, but we are asked to extend the assumed right of car search to include the person of occupants because 'common sense demands that such rights exist in a case such as this where the contraband sought is a small article which could easily be concealed on the person.' ” This is a strong rebuttal of the general principle of warrantless searches. In fact other than the allowance for searches of vehicles for contraband, which I think is a violation, the court only seems to support warrantless arrests if the crime is witnessed by the officer and there is an reasonable fear that the criminal might escape. With current communication technologies this sort of exception is much less necessary as the officer need not travel to another location to acquire a warrant nor should the process take in significant time. Warrants could I believe be issued through telecommunication on the affidavit of the officer requesting the warrant possible by judges who where employed just for such a function.

Di Re ends with this fine quote: “We meet in this case, as in many, the appeal to necessity. It is said that if such arrests and searches cannot be made, law enforcement will be more difficult and uncertain. But the forefathers, after consulting the lessons of history, designed our Constitution to place obstacles in the way of a too permeating police surveillance, which they seemed to think was a greater danger to a free people than the escape of some criminals from punishment. Taking the law as it has been given to us, this arrest and search were beyond the lawful authority of those who executed them. The conviction based on evidence so obtained cannot stand.”

United States v. Watson presents a general claim that the requirement of warrants is not made by the 4th Amendment and supports this supposition with an appeal that common law practice of such warrantless arrests. It also defensed them on the basis that states had the authority to allow such arrests before the 14th Amendment and that the Federal government tried to co-opt that authority for its own agents. “Because the common law rule authorizing arrests without a warrant generally prevailed in the States, it is important for present purposes to note that, in 1792, Congress invested United States marshals and their deputies with 'the same powers in executing the laws of the United States as sheriffs and their deputies in the several states have by law in executing the laws of their respective states.' Act of May 2, 1792, c. 28, § 9, 1 Stat. 265. The Second Congress thus saw no inconsistency between the Fourth Amendment and legislation giving United States marshals the same power as local pace officers to arrest for a felony without a warrant. ^[n8] ”

In Atwater v. Lago Vista a major portion of the logic for the authority to preform warrantless searches is based on English law and shows no regard for the clear fact that the 4th Amendment was intend to protect against abuses found in the same law. “We begin with the state of pre-founding English common law and find that, even after making some allowance for variations in the common-law usage of the term “breach of the peace,”2 the “founding-era common-law rules” were not nearly as clear as Atwater claims; on the contrary, the common-law commentators (as well as the sparsely reported cases) reached divergent conclusions with respect to officers’ warrantless misdemeanor arrest power. Moreover, in the years leading up to American independence, Parliament repeatedly extended express warrantless arrest authority to cover misdemeanor-level offenses not amounting to or involving any violent breach of the peace.” This is the same assertion made in some involuntary labor cases that since the abuse predated the Amendment which prohibited it that the abuse should on that basis be acceptable as an exemption to the protection nominally offered.

“Our decisions counsel against changing this calculus when a State chooses to protect privacy beyond the level that the Fourth Amendment requires. We have treated additional protections exclusively as matters of state law. In Cooper v. California, 386 U. S. 58 (1967) , we reversed a state court that had held the search of a seized vehicle to be in violation of the Fourth Amendment because state law did not explicitly authorize the search. We concluded that whether state law authorized the search was irrelevant. States, we said, remained free “to impose higher standards on searches and seizures than required by the Federal Constitution,” id., at 62, but regardless of state rules, police could search a lawfully seized vehicle as a matter of federal constitutional law. ”

I believe this standard to be logically unsustainable and to be on its face immoral. It prohibits states from placing additional requirements on law enforcement or granting additional protections to its people because any laws to the effect maybe ignore without consequence. I believe strongly that any search that occurs either without legal authority or in violation of the law is unreasonable.

Cooper v California draws a false equivalency “Just as a search authorized by state law may be an unreasonable one under that amendment, so may a search not expressly authorized by state law be justified as a constitutionally reasonable one.”. While this construction is true in absence of a state law making then search illegal it does not account for the presence of such a law where a similar construction could be made 'Just as a search allowed by State law may be prohibited by the application of the 4th Amendment, so may a search allowed by the 4th Amendment may be prohibited by the application of State law.' A search should only be considered reasonable if it complies with both the 4th Amendment's inherent requirements and the requirements of all other applicable laws.

“In California v. Greenwood, 486 U. S. 35 (1988) , weheld that search of an individual’s garbage forbidden by California’s Constitution was not forbidden by the Fourth Amendment . “[W]hether or not a search is reasonable within the meaning of the Fourth Amendment ,” we said, has never “depend[ed] on the law of the particular State in which the search occurs.” Id., at 43. While “[i]ndividual States may surely construe their own constitutions as imposing more stringent constraints on police conduct than does the Federal Constitution,” ibid., state law did not alter the content of the Fourth Amendment .”

I do not believe additional laws alter the content of the the 4th Amendment but rather that the 4th Amendment contains the requirement that any search or arrest must comply with all laws and be conducted with with proper legal authority.

This logic from Cali v Greenwood is questionable “Here, we conclude that respondents exposed their garbage to the public sufficiently to defeat their claim to Fourth Amendment protection. It is common knowledge that plastic garbage bags left on or at the side of a public street are readily accessible to animals, ^[n2] children, scavengers, ^[n3] snoops, ^[n4] and other members of the public. See Krivda, 5 Cal.3d at 367, 486 P.2d at 1269. Moreover, respondents placed their refuse at the curb for the express purpose of conveying it to a third party, the trash collector, who might himself have sorted through respondents' trash or permitted others, such as the police, to do so.” This construction has two flaws; first it allows the government to justify its actions based on the bad actions of others; second presents a a legitimate justification for government inspection an objects transmission between two parties. The first flaw can be expanded to a myriad of other actions such as trespassing or even a search without cause on the basis that nongovernment actors might preform similar actions. The second would allow any property or papers to be open to government inspection despite their remaining at all time private property and nominally protected for such searches. There are available remedies which law enforcement might use to inspect property given from one individual to another. They may ask the second individual for information or to inspect the material or they may if possessing sufficient evidence to do so subpoena the material or testimony of either party.

“We have applied the same principle in the seizure context. Whren v. United States, 517 U. S. 806 (1996) , held that police officers had acted reasonably in stopping a car, even though their action violated regulations limiting the authority of plainclothes officers in unmarked vehicles. We thought it obvious that the Fourth Amendment ’s meaning did not change with local law enforcement practices—even practices set by rule. While those practices “vary from place to place and from time to time,” Fourth Amendment protections are not “so variable” and cannot “be made to turn upon such trivialities.” Id., at 815. ”

It is appalling that the local and State laws should be held to be trivialities. Interestingly the author of this opinion wrote in Whern v US that “The Fourth Amendment guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." Temporary detention of individuals during the stop of an automobile by the police, even if only for a brief period and for a limited purpose, constitutes a "seizure" of "persons" within the meaning of this provision. ” This contradicts the logic allowing warrantless searches of vehicles incident to an arrest or in other circumstances where such a search would not be acceptable as search of a persons home. It is upon that logic as well as the ability of the Federal governments ability to avail itself of the same privilege as States possessed before the 14th Amendment to act without the restraint of the 4th Amendment which the current allowance for warrantless searches and arrests of any kind is based.

“ We are convinced that the approach of our prior cases is correct, because an arrest based on probable cause serves interests that have long been seen as sufficient to justify the seizure. Whren, supra, at 817; Atwater, supra, at 354. Arrest ensures that a suspect appears to answer charges and does not continue a crime, and it safeguards evidence and enables officers to conduct an in-custody investigation. See W. LaFave, Arrest: The Decision to Take a Suspect into Custody 177–202 (1965). ”

While these are good arguments for the social good of warrantless arrests and searches that good on its own does not justify such arrests and searches when the 4th Amendment requires them.

“Moore argues that a State has no interest in arrest when it has a policy against arresting for certain crimes. That is not so, because arrest will still ensure a suspect’s appearance at trial, prevent him from continuing his offense, and enable officers to investigate the incident more thoroughly. State arrest restrictions are more accurately characterized as showing that the State values its interests in forgoing arrests more highly than its interests in making them, see, e.g., Dept. of Justice, National Institute of Justice, D. Whitcomb, B. Lewin, & M. Levine, Issues and Practices: Citation Release 17 (Mar. 1984) (describing cost savings as a principal benefit of citation-release ordinances); or as showing that the State places a higher premium on privacy than the Fourth Amendment requires. A State is free to prefer one search-and-seizure policy among the range of constitutionally permissible options, but its choice of a more restrictive option does not render the less restrictive ones unreasonable, and hence unconstitutional. ”

I believe that the 4th Amendment requires all activities associated with a search or arrests to be legal and not to be in contradiction of any law. I also believe that the exemptions allowed to 4th Amendment are based on practices originating outside the jurisdiction of the Amendment and a clearly not consistent with the wording of the Amendment.

“If we concluded otherwise, we would often frustrate rather than further state policy. Virginia chooses to protect individual privacy and dignity more than the Fourth Amendment requires, but it also chooses not to attach to violations of its arrest rules the potent remedies that federal courts have applied to Fourth Amendment violations. Virginia does not, for example, ordinarily exclude from criminal trials evidence obtained in violation of its statutes. See 45 Va. App., at 161,609 S. E. 2d, at 82 (Annunziata, J., dissenting) (citing Janis v. Commonwealth, 22 Va. App. 646, 651, 472 S. E. 2d 649, 652 (1996)). Moore would allow Virginia to accord enhanced protection against arrest only on pain of accompanying that protection with federal remedies for Fourth Amendment violations, which often include the exclusionary rule. States unwilling to lose control over the remedy would have to abandon restrictions on arrest altogether. This is an odd consequence of a provision designed to protect against searches and seizures. ”

This is not a bad argument, that it should be dependent on the States to provide for the consequences of violating their own laws. I think in this case the danger avoided is lesser than the danger allowed.

“In Atwater, we acknowledged that nuanced judgments about the need for warrantless arrest were desirable, but we nonetheless declined to limit to felonies and disturbances of the peace the Fourth Amendment rule allowing arrest based on probable cause to believe a law has been broken in the presence of the arresting officer. Id., at 346–347. The rule extends even to minor misdemeanors, we concluded, because of the need for a bright-line constitutional standard. If the constitutionality of arrest for minor offenses turned in part on inquiries as to risk of flight and danger of repetition, officers might be deterred from making legitimate arrests. Id., at 351. We found little to justify this cost, because there was no “epidemic of unnecessary minor-offense arrests,”and hence “a dearth of horribles demanding redress.” Id., at 353. ”

I think that the arrest of persons who committed crimes which where witnessed by the arresting actor are good and socially useful. I do not however see them as authorized by the 4th Amendment this is likely because such an arrest is primarily a part of local law enforcement which was not limited by the amendment when it was adopted. At the present moment in time the need is being lessened by the ability to acquire warrants without allowing the perpetrator to escape or commit other crimes.

“Incorporating state-law arrest limitations into the Constitution would produce a constitutional regime no less vague and unpredictable than the one we rejected in Atwater. The constitutional standard would be only as easy to apply as the underlying state law, and state law can be complicated indeed. The Virginia statute in this case, for example, calls on law enforcement officers to weigh just the sort of case-specific factors that Atwater said would deter legitimate arrests if made part of the constitutional inquiry. It would authorize arrest if a misdemeanor suspect fails or refuses to discontinue the unlawful act, or if the officer believes the suspect to be likely to disregard a summons. Va. Code Ann. §19.2–74.A.1.”

The courts aversion to questions requiring the judgment of others seems clear. I do not feel that this is acceptable. I believe that judges and later juries would be perfectly able to second guess these decisions fairly and that what the difficulties the court presents exist mainly in theory rather that practice.

“Finally, linking Fourth Amendment protections to state law would cause them to “vary from place to place and from time to time,” Whren, 517 U. S., at 815. Even at the same place and time, the Fourth Amendment ’s protections might vary if federal officers were not subject to the same statutory constraints as state officers. In Elkins v. United States, 364 U. S. 206, 210–212 (1960) , we noted the practical difficulties posed by the “silver-platter doctrine,” which had imposed more stringent limitations on federal officers than on state police acting independent of them. It would be strange to construe a constitutional provision that did not apply to the States at all when it was adopted to now restrict state officers more than federal officers, solely because the States have passed search-and-seizure laws that are the prerogative of independent sovereigns. ”

Many criminal and civil standards vary for place to place and for time to time. It prevent this would be to adopt a unified legal code which would have to remain unchangeable that would require us to abandon our present system of government. I do not see why Federal agents should be subject to State laws written solely to control the state or local law enforcement but at the same time I don’t see why the shouldn't be subject to State laws which act as general limitations or when acting in concert with local law enforcement.

In Elkins there is this agreeable passage “If resolution of the issue were to be dictated solely by principles of logic, it is clear what our decision would have to be. For surely no distinction can logically be drawn between evidence obtained in violation of the Fourth Amendment and that obtained in violation of the Fourteenth. The Constitution is flouted equally in either case. To the victim it matters not whether his constitutional right has been invaded by a federal agent or by a state officer. 7 It would be a curiously ambivalent rule that would require the courts of the United States to differentiate between unconstitutionally seized evidence upon so arbitrary a basis. Such a distinction indeed would appear to reflect an indefensibly selective evaluation of the provisions of the Constitution. Moreover, it would seem logically impossible to justify a policy that would bar from a federal trial what state officers had obtained in violation of a federal statute, yet would admit that which they had seized in violation of the Constitution itself. Cf. Benanti v. United States, 355 U.S. 96 . [364 U.S. 206, 216]”

If States should wish to restrict their officers and agents more that the minimum required by the 4th Amendment that is their right as it is not their right to lessen the restrictions below that minimum. It should be noted that the Federal government could, within its powers, enact similar restrictions which would create disparity of the same kind.

“The Virginia Supreme Court may have concluded that Knowles required the exclusion of evidence seized from Moore because, under state law, the officers who arrested Moore should have issued him a citation instead. This argument might have force if the Constitution forbade Moore’s arrest, because we have sometimes excluded evidence obtained through unconstitutional methods in order to deter constitutional violations. See Wong Sun v. United States, 371 U. S. 471, 484–485, 488 (1963) . But the arrest rules that the officers violated were those of state law alone, and as we have just concluded, it is not the province of the Fourth Amendment to enforce state law. That Amendment does not require the exclusion of evidence obtained from a constitutionally permissible arrest.”

If the assertion that the effect and limitations of State law on searches and arrests act in a fashion unconnected to the 4th amendment then the authority to rule on their effect rests with the State courts not the Federal or Supreme courts. However the court here reverses the judgment of the Virginia Supreme court. Perhaps it leaves a small area for the State courts to rule on just the State law alone but but as the 4thamendment embodies a core judicial principle which such a ruling would have to consider this courts ruling has the effect of nullifying State law and the protection of the Citizens of the United State.

“We reaffirm against a novel challenge what we have signaled for more than half a century. When officers have probable cause to believe that a person has committed a crime in their presence, the Fourth Amendment permits them to make an arrest, and to search the suspect in order to safeguard evidence and ensure their own safety.”

I believe the legal theory justifying this position is essentially based no the nonapplicablity of the 4th Amendment on the States and it lack of effect on practices before its adoption. This rational is inconsistent with its application to all levels of government and with the necessities of modern life. Since the incorporation of the 4th Amendment is as recent as 1949 and no later case has considered the base issue on its own merits without selectively citing and interpreting earlier cases I think that resting on precedence is poor conclusion.

Means, Powers, and Goals

I would like to address what I view as a central deficiency in the modern interpretation of the constitution. I believe that the grant of specific powers and authority to the Federal government is a grant of means which the government may use to pursue it goals. What those goals maybe is not to me important in determining if the government has exceeded the bounds of its authority. I believe that this is very different from the mainstream legal interpretation which I believe to be as follows: the enumerated powers represent a the establishment of legitimate zones of government interest. This is a very significant difference as it makes the test of government overreach whether the goal of the government was legitimate or not instead of if the means it used were. If the constitution had not included a facilitative grant of power this would not be an issue. But under the goal based test the necessary and proper clause becomes an unlimited grant of power as long as the goal is in line with the expressed powers granted to the government. I believe the necessary and proper clause was and should serve the important but limited purpose of giving congress the power it implement and enforce those powers which they have been given. For example the authority to employ customs agents is not granted to congress but without that power they would not be able to implement the power granted to them to regulate commerce. I believe the test of whether a power is allowed via the necessary and proper clause is thus: if it allows or facilitates the implantation of a power expressly granted to the government and does not interfere with any right expressed or unexpressed held by the States or the people then it can be considered necessary and proper.

This would mean that the Federal government would in many cases be justly able to attempt to accomplish certain goal but not be assured of success if the means necessary to that success are not within the means granted to it. Currently any means needed to succeed at goals viewed as legitimate are granted to the government as a matter of legal doctrine. This justifies almost all exceptions to the plain meaning of the rights, privileges, and immunities of citizens. I hold that it is acceptable to allow the government to attempt to achieve the goals it may wish and to hold it to only those means actually granted to it in that attempt.

If necessary the Constitution has provided the government with a mechanism to grant it self any additional means it feels necessary. That mechanism is a Constitutional amendment. If such a provision was nonexistent the rational behind the end granting the authority to preform the means might be sound and necessary. But with such a provision such an assertion merely boils down to the contention that since it is hard comply with the requirements of the Constitution we should allow the government to act beyond them.

While it may be temping to allow the government the means it believes it needs to accomplish it good and legitimate goals, it is a delusion to believe that any grant of power no matter how all encompassing can guarantee success in the government's endeavors. Viewed in the abstract it is easy to imagine great disruption and chaos resulting from strict limits on governmental power but in practice if a means should become necessary it will usually gain wide spread support allowing the easy acquisition of the needed power through the means provided in the Constitution. It is only when a minority wished to act against the majority or the government wished to act against the people that the grant of power to the government on the sly is required. As both of these instances are abhorrent to our free society and republican government I see only good in forcing the government to expand its power, if such should be necessary, through legitimate Constitutional means.

Addendum to KENNEDY v. LOUISIANA

In my opinion on the case I asserted that States could be forced to lessen punishments but not to increase them. I think on further contemplation that punishments for crimes could be found cruel and unusual on the basis of being unusually minimal and cruel in negating the normal function to society of punishment. Though it is still hard to imagine a course of action that would allow he court to rule on that question directly, unless as an accessory to another issue.

Supreme Blunders

KENNEDY v. LOUISIANA

This is a case overturning the death sentence given to a rapist of minors.

“The National Government and, beyond it, the separate States are bound by the proscriptive mandates of the Eighth Amendment to the Constitution of the United States, and all persons within those respective jurisdictions may invoke its protection. See Amdts. 8 and 14, §1; Robinson v. California, 370 U. S. 660 (1962) ”

Robinson v California is a case where a law which criminalized the status of being addicted to narcotic was found unconstitutionally cruel and unusual. It justly shows an incorporation of the 8th Amendment through the 14th Amendment. That case was rightly decided in my opinion as the criminalization of an individual's status rather than particular action is abhorrent to me as is the allowance a equivalent proof by law.

“This case presents the question whether the Constitution bars respondent from imposing the death penalty for the rape of a child where the crime did not result, and was not intended to result, in death of the victim. We hold the Eighth Amendment prohibits the death penalty for this offense. The Louisiana statute is unconstitutional.”

I disagree with the court that only those crimes where the death of another was sought or accomplished can justly be punished by death. I think that any crime where the victim of the crime would be justified in the use of deadly force to protect themselves, other, or property may justly be punished by death.

The court next summarizes the case before them.

“The jury unanimously determined that petitioner should be sentenced to death. The Supreme Court of Louisiana affirmed. See id., at 779–789, 793; see also State v. Wilson, 96–1392, 96–2076 (La. 12/13/96), 685 So. 2d 1063 (upholding the constitutionality of the death penalty for child rape). The court rejected petitioner’s reliance on Coker v. Georgia, 433 U. S. 584 (1977) , noting that, while Coker bars the use of the death penalty as punishment for the rape of an adult woman, it left open the question which, if any, other nonhomicide crimes can be punished by death consistent with the Eighth Amendment . Because “ ‘children are a class that need special protection,’ ” the state court reasoned, the rape of a child is unique in terms of the harm it inflicts upon the victim and our society. 957 So. 2d, at 781.”

Coke v Georgia states “It is now settled that the death penalty is not invariably cruel and unusual punishment within the meaning of the Eighth Amendment; it is not inherently barbaric or an unacceptable mode of punishment for crime; neither is it always disproportionate to the crime for which it is imposed.” and outlines a standard for the unconstitutionality of a punishment thusly “Under Gregg, a punishment is "excessive" and unconstitutional if it (1) makes no measurable contribution to acceptable goals of punishment, and hence is nothing more than the purposeless and needless imposition of pain and suffering; or (2) is grossly out of proportion to the severity of the crime. A punishment might fail the test on either ground.”. It should be noted that the court had recently in Furman v. Georgia splintered on the issue of capital punishment and had only recently as of Gregg v. Georgia been forced to some sort of standard of acceptability by the mass support for the death penalty.

“But following the approach of Roper v. Simmons, 543 U. S. 551 (2005) , and Atkins v. Virginia, 536 U. S. 304 (2002) , it found significant not the “numerical counting of which [S]tates … stand for or against a particular capital prosecution,” but “the direction of change.” 957 So. 2d, at 783 (emphasis deleted).”

This seems like an odd standard which may subject a State to the values of other States in a way that is arbitrary as the reverse can not be implemented. Which is to say States may be forced to lessen punishments but can not be forced to increase them. In fact the entire consensus notion of cruel and unusual punishment is in my opinion misplaced when talking about State statutes, though it may have a role in the evaluation of Federal law.

“The Eighth Amendment , applicable to the States through the Fourteenth Amendment , provides that “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” The Amendment proscribes “all excessive punishments, as well as cruel and unusual punishments that may or may not be excessive.” Atkins, 536 U. S., at 311, n. 7. The Court explained in Atkins, id., at 311, and Roper, supra, at 560, that the Eighth Amendment ’s protection against excessive or cruel and unusual punishments flows from the basic “precept of justice that punishment for [a] crime should be graduated and proportioned to [the] offense.” Weems v. United States, 217 U. S. 349, 367 (1910) .”

This seems good and fair though the rub will be found in the definition of proportionality.

“Whether this requirement has been fulfilled is determined not by the standards that prevailed when the Eighth Amendment was adopted in 1791 but by the norms that “currently prevail.” Atkins, supra, at 311. The Amendment “draw[s] its meaning from the evolving standards of decency that mark the progress of a maturing society.” Trop v. Dulles, 356 U. S. 86, 101 (1958) (plurality opinion). This is because “[t]he standard of extreme cruelty is not merely descriptive, but necessarily embodies a moral judgment. The standard itself remains the same, but its applicability must change as the basic mores of society change.” Furman v. Georgia, 408 U. S. 238, 382 (1972) (Burger, C. J., dissenting) ”

Again sounds fair but whether enough difference is given to values differing from the judge's own remains to be seen.

“As we shall discuss, punishment is justified under one or more of three principal rationales: rehabilitation, deterrence, and retribution. See Harmelin v. Michigan, 501 U. S. 957, 999 (1991) (Kennedy, J., concurring in part and concurring in judgment); see also Part IV–B, infra. It is the last of these, retribution, that most often can contradict the law’s own ends. This is of particular concern when the Court interprets the meaning of the Eighth Amendment in capital cases. When the law punishes by death, it risks its own sudden descent into brutality, transgressing the constitutional commitment to decency and restraint.

    For these reasons we have explained that capital punishment must “be 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.’ ” Roper, supra, at 568 (quoting Atkins, supra, at 319). Though the death penalty is not invariably unconstitutional, see Gregg v. Georgia, 428 U. S. 153 (1976) , the Court insists upon confining the instances in which the punishment can be imposed. ”

The crime at question is brutal transgression of decency and restraint that warrants a punishment which removes the criminal from society irrevocably. That society should be able to exclude from itself those who commit the most heinous of crimes is a basic right of society. The death penalty is a just means of assuring both that the criminal will never be allowed back into society as well as will cause no further harm. No other punishment allows these assurances.

“Applying this principle, we held in Roper and Atkins that the execution of juveniles and mentally retarded persons are punishments violative of the Eighth Amendment because the offender had a diminished personal responsibility for the crime. See Roper, supra, at 571–573; Atkins, supra, at 318, 320 ”

I believe this diminished responsibility should be a question for a jury and that crimes can be so egregious that even after the mitigation of responsibility the remaining culpability is enough to warrant death.

“The Court further has held that the death penalty can be disproportionate to the crime itself where the crime did not result, or was not intended to result, in death of the victim. In Coker, 433 U. S. 584 , for instance, the Court held it would be unconstitutional to execute an offender who had raped an adult woman. ”

Should criminals be punished in the same manner as they transgressed? That seems to be to be a crueler and more demeaning standard than most others. It would be cruel to rape rapists, to beat abusers, to steal from thieves, how then is it just to kill killers on the basis of retribution. Criminals should be executed not because they killed but because by their severe criminal actions they have proven that their continued life is a danger to others.

“In these cases the Court has been guided by “objective indicia of society’s standards, as expressed in legislative enactments and state practice with respect to executions.” Roper, 543 U. S., at 563; see also Coker, supra, at 593–597 (plurality opinion) (finding that both legislatures and juries had firmly rejected the penalty of death for the rape of an adult woman); Enmund, supra, at 788 (looking to “historical development of the punishment at issue, legislative judgments, international opinion, and the sentencing decisions juries have made”). The inquiry does not end there, however. Consensus is not dispositive. Whether the death penalty is disproportionate to the crime committed depends as well upon the standards elaborated by controlling precedents and by the Court’s own understanding and interpretation of the Eighth Amendment ’s text, history, meaning, and purpose. See id., at 797–801; Gregg, supra, at 182–183 (joint opinion of Stewart, Powell, and Stevens, JJ.); Coker, supra, at 597–600 (plurality opinion).”

It is the right of States to impose punishments at variance to those imposed by other States. Thus the punishments of other States are not a just basis to invalidate those of one State. As well the decisions of juries deciding other crimes with other circumstances is not indicative of their views with regard to the crime and circumstances at hand in a particular crime. In none of these cases was consensus found.

“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.”

There has been no justification of the court's perception of consensus or a rational for its judgment.

“ In 1925, 18 States, the District of Columbia, and the Federal Government had statutes that authorized the death penalty for the rape of a child or an adult. See Coker, supra, at 593 (plurality opinion). Between 1930 and 1964, 455 people were executed for those crimes. See 5 Historical Statistics of the United States: Earliest Times to the Present, pp. 5–262 to 5–263 (S. Carter et al.eds. 2006) (Table Ec343–357). To our knowledge the last individual executed for the rape of a child was Ronald Wolfe in 1964. See H. Frazier, Death Sentences in Missouri, 1803–2005: A History and Comprehensive Registry of Legal Executions, Pardons, and Commutations 143 (2006).”

This appears to me to be strong justification for the execution of child rapists. The standard for disallowing what used to be permissible should be stricter than those disallowing new innovations. Thus the acceptance of a punishment in the past gives tact acceptance to it in the present unless a compelling reason should be provided to prove that it is abusive.

“In 1972, Furman invalidated most of the state statutes authorizing the death penalty for the crime of rape; and in Furman’s aftermath only six States reenacted their capital rape provisions. Three States—Georgia, North Carolina, and Louisiana—did so with respect to all rape offenses. Three States—Florida, Mississippi, and Tennessee—did so with respect only to child rape. See Coker, supra, at 594–595 (plurality opinion). All six statutes were later invalidated under state or federal law. See Coker, supra (striking down Georgia’s capital rape statute); Woodson v. North Carolina, 428 U. S. 280 , n. 6, 301–305 (1976) (plurality opinion) (striking down North Carolina’s mandatory death penalty statute); Roberts v. Louisiana, 428 U. S. 325 (1976) (striking down Louisiana’s mandatory death penalty statute); Collins v. State, 550 S. W. 2d 643, 646 (Tenn. 1977) (striking down Tennessee’s mandatory death penalty statute); Buford v. State, 403 So. 2d 943, 951 (Fla. 1981) (holding unconstitutional the imposition of death for child rape); Leatherwood v. State, 548 So. 2d 389, 402–403 (Miss. 1989) (striking down the death penalty for child rape on state-law grounds). ”

The degree of disruption to the laws of the States created by this period of activity by the court should not be underestimated. That it may have taken decades to renormalize the laws of the States is a strong possibility that should be recognized by the court.

“Louisiana reintroduced the death penalty for rape of a child in 1995. See La. Stat. Ann. §14:42 (West Supp. 1996). Under the current statute, any anal, vaginal, or oral intercourse with a child under the age of 13 constitutes aggravated rape and is punishable by death. See La. Stat. Ann. §14:42 (West Supp. 2007). Mistake of age is not a defense, so the statute imposes strict liability in this regard. Five States have since followed Louisiana’s lead: Georgia, see Ga. Code Ann. §16–6–1 (2007) (enacted 1999); Montana, see Mont. Code Ann. §45–5–503 (2007) (enacted 1997); Oklahoma, see Okla. Stat., Tit. 10, §7115(K) (West 2007 Supp.) (enacted 2006); South Carolina, see S. C. Code Ann. §16–3–655(C)(1) (Supp. 2007) (enacted 2006); and Texas, see Tex. Penal Code Ann. §12.42(c)(3) (West Supp. 2007) (enacted 2007); see also Tex. Penal Code Ann. §22.021(a) (West Supp. 2007). Four of these States’ statutes are more narrow than Louisiana’s in that only offenders with a previous rape conviction are death eligible. See Mont. Code Ann. §45–5–503(3)(c); Okla. Stat., Tit. 10, §7115(K); S. C. Code Ann. §16–3–655(C)(1); Tex. Penal Code Ann. §12.42(c)(3). Georgia’s statute makes child rape a capital offense only when aggravating circumstances are present, including but not limited to a prior conviction. See Ga. Code Ann. §17–10–30 (Supp. 2007). ”

Here is clear evidence of a trend to extend capital punishment to child rape. It also represents a later readjustment to the disruption the court itself caused.

“By contrast, 44 States have not made child rape a capital offense. As for federal law, Congress in the Federal Death Penalty Act of 1994 expanded the number of federal crimes for which the death penalty is a permissible sentence, including certain nonhomicide offenses; but it did not do the same for child rape or abuse. See 108 Stat. 1972 (codified as amended in scattered sections of 18 U. S. C.). Under 18 U. S. C. §2245, an offender is death eligible only when the sexual abuse or exploitation results in the victim’s death. ”

If all States must adopt a punishment concurrently for that punishment to be acceptable then no punishment will be since that is an unachievable standard with no basis in the law.

“Respondent would include Florida among those States that permit the death penalty for child rape. The state statute does authorize, by its terms, the death penalty for “sexual battery upon … a person less than 12 years of age.” Fla. Stat. §794.011(2) (2007); see also §921.141(5) (2007). In 1981, however, the Supreme Court of Florida held the death penalty for child sexual assault to be unconstitutional. See Buford, supra. It acknowledged that Coker addressed only the constitutionality of the death penalty for rape of an adult woman, 403 So. 2d, at 950, but held that “[t]he reasoning of the justices in Coker … compels [the conclusion] that a sentence of death is grossly disproportionate and excessive punishment for the crime of sexual assault and is therefore forbidden by the Eighth Amendment as cruel and unusual punishment,” id., at 951. Respondent points out that the state statute has not since been amended. Pursuant to Fla. Stat. §775.082(2) (2007), however, Florida state courts have understood Buford to bind their sentencing discretion in child rape cases.”

While the Florida law maybe not have any importance as a matter of law. It is important as an indicator of public sentiment and that is what the court is seeking to divine from its examination of the law. Thus the dismissal of this law on the basis that it was found unconstitutional is unreasonable and seems to evidence selective bias.

“The evidence of a national consensus with respect to the death penalty for child rapists, as with respect to juveniles, mentally retarded offenders, and vicarious felony murderers, shows divided opinion but, on balance, an opinion against it. Thirty-seven jurisdictions—36 States plus the Federal Government—have the death penalty. As mentioned above, only six of those jurisdictions authorize the death penalty for rape of a child. Though our review of national consensus is not confined to tallying the number of States with applicable death penalty legislation, it is of significance that, in 45 jurisdictions, petitioner could not be executed for child rape of any kind. That number surpasses the 30 States in Atkins and Roper and the 42 States in Enmund that prohibited the death penalty under the circumstances those cases considered.*^* ”

A divided opinion should be found to favor the right of the State to make its own determination even if on balance the opinion is against it. I seems to me that this presentation is a cover for the implementation of the authors own opinions rather than seeking to reflect the sentiments of the people.

“Still, respondent contends, it is possible that state legislatures have understood Coker to state a broad rule that covers the situation of the minor victim as well. We see little evidence of this. Respondent cites no reliable data to indicate that state legislatures have read Coker to bar capital punishment for child rapeand, for this reason, have been deterred from passing applicable death penalty legislation. In the absence of evidence from those States where legislation has been proposed but not enacted we refuse to speculate about the motivations and concerns of particular state legislators. ”

The court is here addressing the contention that the Coker v Georgia could have been interpreted by State legislatures to prohibit the application of the death penalty in child rape case thus inhibiting them from enacting such laws. This would invalidate the courts test for legislative concusses. The court does not wish to concede this despite coming to the same conclusion based on the logic in Coker that they claim legislature could not have come to.

“The Supreme Court of Florida’s opinion in Buford could be read to support respondent’s argument. But even there the state court recognized that “[t]he [Supreme] Court has yet to decide whether [Coker’s rationale] holds true for the rape of a child” and made explicit that it was extending the reasoning but not the holding of Coker in striking down the death penalty for child rape. 403 So. 2d, at 950, 951. The same is true of the Supreme Court of California’s opinion in Hernandez, supra, at 867, 69 P. 3d, at 464.

We conclude on the basis of this review that there is no clear indication that state legislatures have misinterpreted Coker to hold that the death penalty for child rape is unconstitutional. The small number of States that have enacted this penalty, then, is relevant to determining whether there is a consensus against capital punishment for this crime.”

The court is attempting to have it both ways; first it places gross uncertainty upon law and then takes the State's lack of willingness to challenge the court in mass as proof of legislative consensus on the issue when it is merely indicative of consensus in the desire to comply with the law as promagalted by the court. I would hold that in the absence of unanimity or evidence of the punishment being unacceptably cruel on its face, it falls to congress, through the authority granted in the 14th Amendment, to address this issue rather than the courts.

“Respondent insists that the six States where child rape is a capital offense, along with the States that have proposed but not yet enacted applicable death penalty legislation, reflect a consistent direction of change in support of the death penalty for child rape. Consistent change might counterbalance an otherwise weak demonstration of consensus. See Atkins, 536 U. S., at 315 (“It is not so much the number of these States that is significant, but the consistency of the direction of change”); Roper, 543 U. S., at 565 (“Impressive in Atkins was the rate of abolition of the death penalty for the mentally retarded”). But whatever the significance of consistent change where it is cited to show emerging support for expanding the scope of the death penalty, no showing of consistent change has been made in this case. ”

Again the direction of change is a bizarre standard which unsettles settled law and creates a situation where no law may be relied on with certainty.

“Aside from pending legislation, it is true that in the last 13 years there has been change towards making child rape a capital offense. This is evidenced by six new death penalty statutes, three enacted in the last two years. But this showing is not as significant as the data in Atkins, where 18 States between 1986 and 2001 had enacted legislation prohibiting the execution of mentally retarded persons. See Atkins, supra, at 313–315. Respondent argues the instant case is like Roper because, there, only five States had shifted their positions between 1989 and 2005, one less State than here. See Roper, supra, at 565. But in Roper, we emphasized that, though the pace of abolition was not as great as in Atkins, it was counterbalanced by the total number of States that had recognized the impropriety of executing juvenile offenders. ”

The court findings on significance are subjective and likely to merely serve as a shroud for the real impetus for their decision. This makes crafting laws arbitrarily difficult and uncertain as one must guess the response of the court that will exist when an appeal to a law reaches it rather than using a clear standard which anyone may reasonably understand.

 “Nine States—Florida, Georgia, Louisiana, Mississippi, Montana, Oklahoma, South Carolina, Tennessee, and Texas—have permitted capital punishment for adult or child rape for some length of time between the Court’s 1972 decision in Furman and today. See supra, at 12; Coker, supra, at 595 (plurality opinion). Yet no individual has been executed for the rape of an adult or child since 1964, and no execution for any other nonhomicide offense has been conducted since 1963. See Historical Statistics of the United States, at 5–262 to 5–263 (Table Ec343–357). Cf. Thompson v. Oklahoma, 487 U. S. 815, 852–853 (1988) (O’Connor, J., concurring in judgment) (that “four decades have gone by since the last execution of a defendant who was younger than 16 at the time of the offense … support[s] the inference of a national consensus opposing the death penalty for 15-year-olds”).”

The court is down playing the effect they produced in the practice of law and while attempting to use data showing that effect to prove the support for the contention which caused the disruption in the first place.

“Louisiana is the only State since 1964 that has sentenced an individual to death for the crime of child rape; and petitioner and Richard Davis, who was convicted and sentenced to death for the aggravated rape of a 5-year-old child by a Louisiana jury in December 2007, see State v. Davis, Case No. 262,971 (1st Jud. Dist., Caddo Parish, La.) (cited in Brief for Respondent 42, and n. 38), are the only two individuals now on death row in the United States for a nonhomicide offense. ”

The rarity of a punishment does not make it unusual if the circumstances in which it is imposed are themselves rare. This is likely to be the case with child rape and other crimes where the can be a large variance in brutality, perversion, and harm caused between offenses. Thus only those cases with comparable circumstances in jurisdictions with the same available punishments can justly serve to find the rarity of the punishment in question. No attempt here is made to look at data in that way thus the findings make have little basis or significance.

“After reviewing the authorities informed by contemporary norms, including the history of the death penalty for this and other nonhomicide crimes, current state statutes and new enactments, and the number of executions since 1964, we conclude there is a national consensus against capital punishment for the crime of child rape.”

I believe that the courts real position is that the death penalty is cruel and unusual as punishment for any offense not resulting in the death of another. I do not think the court is willing to break with precedence enough to make this argument on its own merits and may justly fear legislative action if it did. Thus it makes the same point but passes the buck to other authorities.

“It must be acknowledged that there are moral grounds to question a rule barring capital punishment for a crime against an individual that did not result in death. These facts illustrate the point. Here the victim’s fright, the sense of betrayal, and the nature of her injuries caused more prolonged physical and mental suffering than, say, a sudden killing by an unseen assassin. The attack was not just on her but on her childhood. For this reason, we should be most reluctant to rely upon the language of the plurality in Coker, which posited that, for the victim of rape, “life may not be nearly so happy as it was” but it is not beyond repair. 433 U. S., at 598.”

I fail to see how this in and of itself is not sufficient justification.

“It does not follow, though, that capital punishment is a proportionate penalty for the crime. The constitutional prohibition against excessive or cruel and unusual punishments mandates that the State’s power to punish “be exercised within the limits of civilized standards.” Trop, 356 U. S., at 99, 100 (plurality opinion). 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. See id., at 100.”

This is not a new standard but the reimplementation of an old standard displaced by the court. The court also presumes that capital punishment is less advanced or civilized than other punishment but make no presentation of facts or rational to support this opinion. The opposite opinion may be easily held. For example the attempt to alter a person so as to force them into compliance with the wishes of society can be viewed as degrading and dehumanizing in a way that the mere death of a person is not. Both seek to remove the objectionable from society but only one disrespects the identity and essence of an individual by treating his crimes as a disease. This justifies the most humiliating and endless  of abuses and oppressions as it is for the criminal's “own good”. Death is a strong punishment but it need not strip a person of his dignity.

I believe a society may eject from itself those who commit offenses against other members of that society which inflect grievous harm. Death is a much cleaner way to accomplish this than permanent imprisonment. It also does not place a continuing burden on the society already wronged by the criminals actions.

“To date the Court has sought to define and implement this principle, for the most part, in cases involving capital murder. One approach has been to insist upon general rules that ensure consistency in determining who receives a death sentence. See California v. Brown, 479 U. S. 538, 541 (1987) (“[D]eath penalty statutes [must] be structured so as to prevent the penalty from being administered in an arbitrary and unpredictable fashion” (citing Gregg, 428 U. S. 153 ; Furman, 408 U. S. 238 )); Godfrey v. Georgia, 446 U. S. 420, 428 (1980) (plurality opinion) (requiring a State to give narrow and precise definition to the aggravating factors that warrant its imposition). At the same time the Court has insisted, to ensure restraint and moderation in use of capital punishment, on judging the “character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death.” Woodson, 428 U. S., at 304 (plurality opinion); Lockett v. Ohio, 438 U. S. 586, 604–605 (1978) (plurality opinion).

The tension between general rules and case-specific circumstances has produced results not all together satisfactory. See Tuilaepa v. California, 512 U. S. 967, 973 (1994) (“The objectives of these two inquiries can be in some tension, at least when the inquiries occur at the same time”); Walton v. Arizona, 497 U. S. 639, 664–665 (1990) (Scalia, J., concurring in part and concurring in judgment) (“The latter requirement quite obviously destroys whatever rationality and predictability the former requirement was designed to achieve”). This has led some Members of the Court to say we should cease efforts to resolve the tension and simply allow legislatures, prosecutors, courts, and juries greater latitude. See id., at 667–673 (advocating that the Court adhere to the Furman line of cases and abandon the Woodson-Lockett line of cases). For others the failure to limit these same imprecisions by stricter enforcement of narrowing rules has raised doubts concerning the constitutionality of capital punishment itself. See Baze v. Rees, 553 U. S. ___, ___–___ (2008) (slip op., at 13–17) (Stevens, J., concurring in judgment); Furman, supra, at 310–314 (White, J., concurring); Callins v. Collins, 510 U. S. 1141, 1144–1145 (1994) (Blackmun, J., dissenting from denial of certiorari). ”

I think both of those standards are good issues to consider when imposing a death penalty. I do not believe that either is strictly necessary. There are cases where the mere commission of the crime justifies the death penalty regardless of the any factor relating to the criminal. There are also cases where the nature of the criminal may warrant the death penalty when it might not be warranted with another criminal. The resolution of this problem does not seem to me to be properly the domain of the court unless it wishes to require both that juries consider the character and record of a criminal when sentencing them to death as well as requiring states to be clear as to which offenses justify the imposition of the death penalty. Those requirements being placed on different parties are not incompatible though they make judicial second guessing difficult. I strongly feel increased latitude is the proper response.

“Our concern here is limited to crimes against individual persons. We do not address, for example, crimes defining and punishing treason, espionage, terrorism, and drug kingpin activity, which are offenses against the State. As it relates to crimes against individuals, though, the death penalty should not be expanded to instances where the victim’s life was not taken.”

This contention that the harm to individuals should be held less serious than harm done to the state is insulting. No rational other than a contrived “consensus” has been presented to justify this. Perhaps States ought to remove the liability for crimes committed against the most heinous criminals instead of punishing them justly through the law. There is little recourse to change this contention by the court despite it being essentially dependent on the will of the people.

“The same distinction between homicide and other serious violent offenses against the individual informed the Court’s analysis in Enmund, 458 U. S. 782 , where the Court held that the death penalty for the crime of vicarious felony murder is disproportionate to the offense. The Court repeated there the fundamental, moral distinction between a “murderer” and a “robber,” noting that while “robbery is a serious crime deserving serious punishment,” it is not like death in its “severity and irrevocability.” Id., at 797 (internal quotation marks omitted).”

Very few criminals abduct and confine their victim yet that is the a very common form of punishment. This equivalency between punishment and crime is false and holds no semblance of justice outside of the coincidental similarity of capital punishment and murder. Punishment should not be in kind but should be proportional to the harm and suffering. It is hard to imagine that imposing the death penalty would cause the criminal anywhere near the suffering and pain he imposed on the child he raped. While it is not punishment in kind it is as close to a proportional punishment as we in a civilized society can bring to bear. This is because death is fails to raise to level of true proportionality rather than because it exceeds it.

“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 nonhomicide 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,” Coker, 433 U. S., at 598 (plurality opinion), they cannot be compared to murder in their “severity and irrevocability.” Ibid. ”

No proof is offered that the public harm is less than murder. The emphasis on precedence shows that once this decision is made it will not be possible to change. Even though collective will and perception is the moral authority for this judgment it will hold them bound.

“In reaching our conclusion we find significant the number of executions that would be allowed under respondent’s approach. The crime of child rape, considering its reported incidents, occurs more often than first-degree murder. Approximately 5,702 incidents of vaginal, anal, or oral rape of a child under the age of 12 were reported nationwide in 2005; this is almost twice the total incidents of intentional murder for victims of all ages (3,405) reported during the same period. See Inter-University Consortium for Political and Social Research, National Incident-Based Reporting System, 2005, Study No. 4720, http://www.icpsr.umich.edu (as visited June 12, 2008, and available in Clerk of Court’s case file). Although we have no reliable statistics on convictions for child rape, we can surmise that, each year, there are hundreds, or more, of these convictions just in jurisdictions that permit capital punishment. Cf. Brief for Louisiana Association of Criminal Defense Lawyers et al. as Amici Curiae 1–2, and n. 2 (noting that there are now at least 70 capital rape indictments pending in Louisiana and estimating the actual number to be over 100). As a result of existing rules, see generally Godfrey, 446 U. S., at 428–433 (plurality opinion), only 2.2% of convicted first-degree murderers are sentenced to death, see Blume, Eisenberg, & Wells, Explaining Death Row’s Population and Racial Composition, 1 J. of Empirical Legal Studies 165, 171 (2004). But under respondent’s approach, the 36 States that permit the death penalty could sentence to death all persons convicted of raping a child less than 12 years of age. This could not be reconciled with our evolving standards of decency and the necessity to constrain the use of the death penalty.”

Finally the court looks at incident number. Sadly if does so in a parade of horrors. That few murders are sentenced to death clearly illustrates that it is unlikely for a large percentage of child rapists to be sentenced to death though the court seems to hold otherwise. That the court feels some sort of duty to reduce the imposition of the death penalty has no relevance to the law or our system of government and only serves to undermine the argument made here.

“It might be said that narrowing aggravators could be used in this context, as with murder offenses, to ensure the death penalty’s restrained application. We find it difficult to identify standards that would guide the decisionmaker so the penalty is reserved for the most severe cases of child rape and yet not imposed in an arbitrary way. Even were we to forbid, say, the execution of first-time child rapists, see supra at 12, or require as an aggravating factor a finding that the perpetrator’s instant rape offense involved multiple victims, the jury still must balance, in its discretion, those aggravating factors against mitigating circumstances. In this context, which involves a crime that in many cases will overwhelm a decent person’s judgment, we have no confidence that the imposition of the death penalty would not be so arbitrary as to be “freakis[h],” Furman, 408 U. S.,at 310 (Stewart, J., concurring). We cannot sanction this result when the harm to the victim, though grave, cannot be quantified in the same way as death of the victim.”

If a criminal should commit crimes of such repugnant and abhorrent nature as to cause a jury to believe those crimes should warrant death that seems a perfectly acceptable standard to me. It is only arbitrary in the sense the court could not predict the results but this is in fact true of any jury trial and is the result of the jurors use of their own judgments and faculties. To eliminate this arbitrariness it would be necessary to make the sentencing mandatory something that the court forbids and something that would truly be arbitrary. So the court sets up this conundrum as a problem which can not be resolved when it is not a real problem but merely the courts distrust of juries and the citizens which they are comprised of.

“As noted above, 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.”

Once again the court makes moral judgments it is not qualified to make and presents no support for it.

“ Our concerns are all the more pronounced where, as here, the death penalty for this crime has been most infrequent. See Part III–D, supra. We have developed a foundational jurisprudence in the case of capital murder to guide the States and juries in imposing the death penalty. Starting with Gregg, 428 U. S. 153 ,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.”

The court itself created this problem and only the pressing need of the States to dispose of murders in a manner fitting to their crimes has provided them with the willingness to play the court's fun house game of evolving precedence. I feel no sympathy for the court in avoiding the results of its own actions. I have even less sympathy for child rapists, who rightfully convicted and punished, may be found later by the court to be “undeserving” of death. It is not an injustice to be convicted and punished according to the law as it exists even if it should later be changed in such a way as to mitigate the punishment you would receive if you committed the crime in the future. Indeed this is touted as a virtue by the court that the law should be known and settled and applied as such.

“Our decision is consistent with the justifications offered for the death penalty. Gregg instructs that capital punishment is excessive when it is grossly out of proportion to the crime or it does not fulfill the two distinct social purposes served by the death penalty: retribution and deterrence of capital crimes. See id., at 173, 183, 187 (joint opinion of Stewart, Powell, and Stevens, JJ.); see also Coker, 433 U. S., at 592 (plurality opinion) (“A punishment might fail the test on either ground”). ”

Child rape can only be found “grossly out of proportion” with capital punishment when a bizarre standard of equivalent effect is a applied. Such that an eye must be taken for an eye and other punishment is found out of proportion. That capital punishment serves as retribution and deterrence as well as prevention have not been actually challenged by the court. Thus the court rests solely on that death should be punished with death.

“The goal of retribution, which reflects society’s and the victim’s interests in seeing that the offender is repaid for the hurt he caused, see Atkins, 536 U. S., at 319; Furman, supra, at 308 (Stewart, J., concurring), does not justify the harshness of the death penalty here. In measuring retribution, as well as other objectives of criminal law, it is appropriate to distinguish between a particularly depraved murder that merits death as a form of retribution and the crime of child rape. See Part IV–A, supra; Coker, supra, at 597–598 (plurality opinion).”

I do not see the distinction nor do I see any attempt to make such a distinction other than one killed someone and one didn't. They can not be the only distinction for who should be put to death and who shouldn't since in many cases the court has found it insufficient.

“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, L. H. 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. Cf. G. Goodman et al., Testifying in Criminal Court: Emotional Effects on Child Sexual Assault Victims 50, 62, 72 (1992); Brief for National Association of Social Workers et al.as Amici Curiae 17–21. And in the end the State made L. H. a central figure in its decision to seek the death penalty, telling the jury in closing statements: “[L. H.] is asking you, asking you to set up a time and place when he dies.” Tr. 121 (Aug. 26, 2003).

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.”

It is interesting that the court again presents their own requirements as a harm. If the trial and sentence were carried out more swiftly then much of this harm might be mitigated if such is the goal. The court also ignores the value of seeing those who wronged you punished by the law. These concerns are not limited to capital cases though the court holds no contention that other cases should be handled differently to avoid this harm.

“There are, moreover, serious systemic concerns in prosecuting the crime of child rape that are relevant to the constitutionality of making it a capital offense. The problem of unreliable, induced, and even imagined child testimony means there is a “special risk of wrongful execution” in some child rape cases. Atkins, supra, at 321. See also Brief for National Association of Criminal Defense Lawyers et al.as Amici Curiae 5–17. This undermines, at least to some degree, the meaningful contribution of the death penalty to legitimate goals of punishment. Studies conclude that children are highly susceptible to suggestive questioning techniques like repetition, guided imagery, and selective reinforcement. See Ceci & Friedman, The Suggestibility of Children: Scientific Research and Legal Implications, 86 Cornell L. Rev. 33, 47 (2000) (there is “strong evidence that children, especially young children, are suggestible to a significant degree—even on abuse-related questions”); Gross, Jacoby, Matheson, Montgomery, & Patil, Exonerations in the United States 1989 Through 2003, 95J. Crim. L. & C. 523, 539 (2005) (discussing allegations of abuse at the Little Rascals Day Care Center); see also Quas, Davis, Goodman, & Myers, Repeated Questions, Deception, and Children’s True and False Reports of Body Touch, 12 Child Maltreatment 60, 61–66 (2007) (finding that 4- to 7-year-olds “were able to maintain [a] lie about body touch fairly effectively when asked repeated, direct questions during a mock forensic interview”).

Similar criticisms pertain to other cases involving child witnesses; but child rape cases present heightened concerns because the central narrative and account of the crime often comes from the child herself. She and the accused are, in most instances, the only ones present when the crime was committed. See Pennsylvania v. Ritchie, 480 U. S. 39, 60 (1987) . Cf. Goodman, Testifying in Criminal Court, at 118. And the question in a capital case 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. See Ceci and Friedman, supra; Quas, supra. Although capital punishment does bring retribution, and the legislature here has chosen to use it for this end, its judgment must be weighed, in deciding the constitutional question, against the special risks of unreliable testimony with respect to this crime.”

Not all evidence in such cases is child testimony. There is no showing that the problems with child testimony would not be considered by the jury nor does the court explain how if child testimony is unreliable in these cases it is not treated as such in other cases.

“With respect to deterrence, if the death penalty adds to the risk of non-reporting, that, too, diminishes the penalty’s objectives. Underreporting is a common problem with respect to child sexual abuse. See Hanson, Resnick, Saunders, Kilpatrick, & Best, Factors Related to the Reporting of Childhood Rape, 23 Child Abuse & Neglect 559, 564 (1999) (finding that about 88% of female rape victims under the age of 18 did not disclose their abuse to authorities); Smith et al., Delay in Disclosure of Childhood Rape: Results From A National Survey, 24 Child Abuse & Neglect 273, 278–279 (2000) (finding that 72% of women raped as children disclosed their abuse to someone, but that only 12% of the victims reported the rape to authorities). Although we know little about what differentiates those who report from those who do not report, see Hanson, supra, at 561, one of the most commonly cited reasons for nondisclosure is fear of negative consequences for the perpetrator, a concern that has special force where the abuser is a family member, see Goodman-Brown, Edelstein, Goodman, Jones, & Gordon, Why Children Tell: A Model of Children’s Disclosure of Sexual Abuse, 27 Child Abuse & Neglect 525, 527–528 (2003); Smith, supra, at 283–284 (finding that, where there was a relationship between perpetrator and victim, the victim was likely to keep the abuse a secret for a longer period of time, perhaps because of a “greater sense of loyalty or emotional bond”); Hanson, supra, at 565–566, and Table 3 (finding that a “significantly greater proportion of reported than nonreported cases involved a stranger”); see also Ritchie, supra, at 60. The experience of the amici who work with child victims indicates that, when the punishment is death, both the victim and the victim’s family members may be more likely to shield the perpetrator from discovery, thus increasing underreporting. See Brief for National Association of Social Workers et al.as Amici Curiae 11–13. As a result, punishment by death may not result in more deterrence or more effective enforcement. ”

Again the court dabbles in speculation on possibilities not clearly before the court. It is here second guessing the application of the States' police powers. It has in many other cases refused to speculate in a similar fashion or even to act at all on the harms done by powers justly exerted by the States.

“ In addition, by in effect making the punishment for child rape and murder equivalent, a State that punishes child rape by death may remove a strong incentive for the rapist not to 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. See Rayburn, Better Dead Than R(ap)ed?: The Patriarchal Rhetoric Driving Capital Rape Statutes, 78 St. John’s L. Rev. 1119, 1159–1160 (2004). It might be argued that, even if the death penalty results in a marginal increase in the incentive to kill, this is counterbalanced by a marginally increased deterrent to commit the crime at all. Whatever balance the legislature strikes, however, uncertainty on the point makes the argument for the penalty less compelling than for homicide crimes.”

This makes assumption about the objectives of State legislation. Likely fair ones, but it does not address if such a goal would be a legitimate use of State power, since States are not constrained by the negative consequences of criminal actions that result from their laws. It is also hard to see upon what basis the court is entitled to on opinion on this issue since they are adjudication here not on the basis of the punishment itself being cruel and unusual but in its application and effect.

“Our determination that there is a consensus against the death penalty for child rape raises the question whether the Court’s own institutional position and its holding will have the effect of blocking further or later consensus in favor of the penalty from developing. The Court, it will be argued, by the act of addressing the constitutionality of the death penalty, intrudes upon the consensus-making process. By imposing a negative restraint, the argument runs, the Court makes it more difficult for consensus to change or emerge. The Court, according to the criticism, itself becomes enmeshed in the process, part judge and part the maker of that which it judges. ”

This is a serious and sadly just charge. One might think that the court with mitigate this fault since it addresses it but one would be mistaken.

“These concerns overlook the meaning and full substance of the established proposition that the Eighth Amendment is defined by “the evolving standards of decency that mark the progress of a maturing society.” Trop, 356 U. S., at 101 (plurality opinion). Confirmed by repeated, consistent rulings of this Court, this principle requires that use of the death penalty be restrained. The rule of evolving standards of decency with specific marks on the way to full progress and mature judgment means that resort to the penalty must be reserved for the worst of crimes and limited in its instances of application. In most cases justice is not better served by terminating the life of the perpetrator rather than confining him and preserving the possibility that he and the system will find ways to allow him to understand the enormity of his offense. Difficulties in administering the penalty to ensure against its arbitrary and capricious application require adherence to a rule reserving its use, at this stage of evolving standards and in cases of crimes against individuals, for crimes that take the life of the victim. ”

"It is not so because we do not wish to say it is", is not a very compelling argument. Also, while I think that in Trop v. Dulles the case at had could have been found to be cruel and unusual punishment I think the court's holding that a citizen may not be striped of his citizenship as punishment is not grounded in the law. I do not however think that such can not be justly done to residents and thus doing so would require the concurrent expulsion of the citizen if he were still a resident of the United States.

Let me in closing say that the illusion of “progress” advanced by the court is an illegitimate construct and amounts to an abdication of their judicial role in government and attempting to legislate.