Tuesday, July 8, 2008

The court was right in child rape case


Tuesday, July 08, 2008
DANIEL LEDDY
STATEN ISLAND, N.Y. -- On March 4, 1991, Mark Dean Schwab was released from prison after serving three years of an eight-year sentence for the aggravated rape of a 13- year-old boy. A few weeks later, a photo of 11-year-old Juny Rios-Martinez, who had won a kit flying contest, appeared in "Florida Today."

After seeing Juny's photo, Schwab impersonated a news reporter to gain access to the boy. On April 18, 1991, the brazen predator called Juny's school and, claiming to be his father, arranged for the child to meet him at a ball field.

After witnesses saw Juny getting into a U-haul truck, he disappeared. Five days later, Schwab lead police to the child's nude body stuffed inside a footlocker.

Last Tuesday, with death penalty opponents protesting outside, the Florida executed Schwab for kidnapping, rape, and murder. His was a crime so horrific, committed under circumstances so infuriating, that supporters of capital punishment should slap his mug shot on a poster and defy anybody to explain how justice could possibly have been served by anything less than his death.

Schwab's execution came only days after the U.S. Supreme Court struck down as unconstitutional a Louisiana law that authorized the death penalty for child rape even if the victim survives the attack. The 5-4 ruling in Kennedy v. Louisiana produced outcries of unwarranted judicial activism and charges that the court is insensitive to the depravity of child rape.

Not surprisingly, the presumptive presidential nominees of both major parties issued statements in reaction to the decision.

Politics aside, the Supreme Court got it right here, and neither Republican John McCain nor Democrat Barack Obama distinguished himself by what he had to say about the court's ruling.

The death penalty is not a deterrent to murder or any other exceptionally serious crime. This is because would-be perpetrators simply don't act under the assumption that they are likely to be caught.

Moreover, the prospect of life imprisonment without parole is such a devastating punishment that, if deterrence were really possible, it would certainly provide it.

The real issue here is justice, which is precisely why the process is referred to as the criminal justice system. It is not vindictiveness, revenge, or political appeasement. Neither is it mercy which, if dispensed inappropriately, undermines the mandate that justice be done.

Schwab's execution was not only appropriate but necessary if justice was to be served. By cold, calculated, premeditated acts, he took the life of a child. So, in a cold, calculated, premeditated response, the people of Florida took his in return.

DECISIVE ELEMENT

This decisive element -- the death of the victim -- was absent in the Kennedy case. While not pivotal to the court's decision, it is worth noting that the child whom Kennedy raped made a complete recovery. For the precise reason that executing Schwab was just, taking Kennedy's life would have been unjust.

Not only did the court reach the right result, but it got there without overstepping the limits of its legitimate power. In considering whether the death penalty constitutes cruel and unusual punishment where a defendant's victim survives, the court was required to consider "the evolving standards of decency that mark the progress of a maturing society."

A second requirement is that punishment be "graduated and proportioned to the offense." Applying these principles in two fairly recent cases, the court barred the execution of juveniles and mentally retarded persons.

The court noted that in today's America, only six states authorize the death penalty for child rape. In finding a social consensus against such executions, the court also pointed out that no person has been put to death in the United States for any non-homicide crime in 44 years.

The court correctly concluded that while child rape inflicts "devastating" harm, it cannot be fairly equated to premeditated murder in terms of either its depravity or consequences to the victim.

Blasting the court's decision, McCain said that it was "profoundly disturbing" that any judge in America would fail to see child rape as "the most heinous of crimes" fully deserving of the death penalty.

Obama also took issue with the ruling, stating that "a potentially applicable" death sentence for the rape of a "small child" committed under "narrow, limited, well-defined circumstances" should not be deemed unconstitutional.

McCain's reaction is nonsensical on its face because it not only equates child rape with premeditated murder, but asserts that it is the more serious of the two.

Obama's statement, on the other hand, is so full of qualifiers and imprecise terms that, when considered against his liberal politics, it fuels suspicion that he actually supports the court's decision but is fearful of handing McCain a campaign issue.

The Supreme Court can be justifiably criticized for unwarranted judicial activism in several cases with far-reaching consequences. It's decision in Kennedy v. Louisiana, however, isn't one of them.

Daniel Leddy's On The Law column appears each Tuesday on the Advance Op-Ed Page. His e-mail address is JudgeLeddy@si.rr.com.

3 comments:

dudleysharp said...

It was clear to me that there was no national consensus or evolving standard against executing child rapists.
 
Houdini judges can pick any lock.
 
SCOTUS' evolving standards doctrine and the national consensus "standards" are both prone to this type of constitutional perversion - the alchemy of highly strained legal arguments derived from personal opinion.
 
See Jim Lindgren's, A “National Consensus” in Favor of the Death Penalty for Child Rapists"
 http://volokh.com/posts/1214447764.shtml
 
And a  July, 2008 National Poll
 
By a 55 - 38 percent margin, voters favor the death penalty for a person convicted of raping a child. Women and men are consistent in their support.
 http://www.quinnipiac.edu/x1295.xml?ReleaseID=1194

 
Another excellent example of this type of phony consensus invented by SCOTUS is this,
 
A phony 'consensus' on youthful killers
by Jeff Jacoby in a Boston Globe op/ed

http://www.boston.com/news/globe/editorial_opinion/oped/articles/2005/03/06/a_phony_consensus_on_youthful_killers/
 
As a firm adherent to the reality that incentives matter to most people, including criminals, I was concerned that if the sanction options were equal for child rape and child murder that some rapists would be more prone to murder their victims.
 
copyright 1998-2008 Dudley Sharp
Permission for distribution of this document, in whole or in part,  is approved with proper attribution.
 
Dudley Sharp, Justice Matters
e-mail  sharpjfa@aol.com,  713-622-5491,
Houston, Texas
 
Mr. Sharp has appeared on ABC, BBC, CBS, CNN, C-SPAN, FOX, NBC, NPR, PBS , VOA and many other TV and radio networks, on such programs as Nightline, The News Hour with Jim Lehrer, The O'Reilly Factor, etc., has been quoted in newspapers throughout the world and is a published author.
 
A former opponent of capital punishment, he has written and granted interviews about, testified on and debated the subject of the death penalty, extensively and internationally.
 
Pro death penalty sites 

homicidesurvivors(dot)com/categories/Dudley%20Sharp%20-%20Justice%20Matters.aspx

www(dot)dpinfo.com
www(dot)cjlf.org/deathpenalty/DPinformation.htm
www(dot)clarkprosecutor.org/html/links/dplinks.htm
www(dot)coastda.com/archives.html
www(dot)lexingtonprosecutor.com/death_penalty_debate.htm
www(dot)prodeathpenalty.com
www(dot)yesdeathpenalty.com/deathpenalty_co
yesdeathpenalty.googlepages.com/home2   (Sweden)
www(dot)wesleylowe.com/cp.html

dudleysharp said...

Leddy got it, precisely wrong, with regard to deterrence for the death penalty and life without parole.

16 recent studies, inclusive of their defenses, find for death penalty deterrence.

A surprise? No.

Life is preferred over death. Death is feared more than life.

Some believe that all studies with contrary findings negate those 16 studies. They don't. Studies which don't find for deterrence don't say no one is deterred, but that they couldn't measure those deterred.

What prospect of a negative outcome doesn't deter some? There isn't one . . . although committed anti death penalty folk may say the death penalty is the only one.

However, the premier anti death penalty scholar accepts it as a given that the death penalty is a deterrent, but does not believe it to be a greater deterrent than a life sentence. Yet, the evidence is compelling and un refuted that death is feared more than life.

Some death penalty opponents argue against death penalty deterrence, stating that it's a harsher penalty to be locked up without any possibility of getting out.

Reality paints a very different picture.

What percentage of capital murderers seek a plea bargain to a death sentence? Zero or close to it. They prefer long term imprisonment.

What percentage of convicted capital??murderers argue for execution in the penalty phase of their capital trial? Zero or close to it. They prefer long term imprisonment.

What percentage of death row inmates waive their appeals and speed up the execution process? Nearly zero. They prefer long term imprisonment.

This is not, even remotely, in dispute.

Life is preferred over death. Death is feared more than life.

The Death Penalty: More Protection for Innocents
Dudley Sharp, Justice Matters, contact info below

Often, the death penalty dialogue gravitates to the subject of innocents at risk of execution. Seldom is a more common problem reviewed. That is, how innocents are more at risk without the death penalty.

Living murderers, in prison, after release or escape or after our failures to incarcerate them, are much more likely to harm and murder, again, than are executed murderers.

Although this is, obviously a truism, it is surprising how often folks overlook the enhanced incapacitation benefits of the death penalty over incarceration.

No knowledgeable and honest party questions that the death penalty has the most extensive due process protections in US criminal law.

Therefore, actual innocents are more likely to be sentenced to life imprisonment and more likely to die in prison serving under that sentence, that it is that an actual innocent will be executed.

That is. logically, conclusive.

Furthermore, history tells us that lifers have many ways to get out: Pardon, commutation, escape, clerical error, change in the law, etc.

In choosing to end the death penalty, or in choosing not implement it, some have chosen to spare murderers at the cost of sacrificing more innocent lives.

Furthermore, possibly we have sentenced 20-25 actually innocent people to death since 1973, or 0.3% of those so sentenced. Those have all been released upon post conviction review. The anti death penalty claims, that the numbers are significantly higher,are a fraud, easily discoverable by fact checking.

6 inmates have been released from death row because of DNA evidence. An additional 9 were released from prison, because of DNA exclusion, who had previously been sentenced to death.

The innocents deception of death penalty opponents has been getting exposure for many years. Even the behemoth of anti death penalty newspapers, The New York Times, has recognized that deception.

To be sure, 30 or 40 categorically innocent people have been released from death row . . . (1) This when death penalty opponents were claiming the release of 119 "innocents" from death row. Death penalty opponents never required actual innocence in order for cases to be added to their "exonerated" or "innocents" list. They simply invented their own definitions for exonerated and innocent and deceptively shoe horned large numbers of inmates into those definitions - something easily discovered with fact checking.

There is no proof of an innocent executed in the US, at least since 1900.

If we accept that the best predictor of future performance is past performance, we can reasonable conclude that the DNA cases will be excluded prior to trial, and that for the next 8000 death sentences, that we will experience a 99.8% accuracy rate in actual guilt convictions. This improved accuracy rate does not include the many additional safeguards that have been added to the system, over and above DNA testing.

Of all the government programs in the world, that put innocents at risk, is there one with a safer record and with greater protections than the US death penalty?

Unlikely.

Full report -All Innocence Issues: The Death Penalty, upon request.

Full report - The Death Penalty as a Deterrent, upon request

(1) The Death of Innocents: A Reasonable Doubt,
New York Times Book Review, p 29, 1/23/05, Adam Liptak,
national legal correspondent for The NY Times

Dudley Sharp, Justice Matters
e-mail sharpjfa@aol.com 713-622-5491,
Houston, Texas

Mr. Sharp has appeared on ABC, BBC, CBS, CNN, C-SPAN, FOX, NBC, NPR, PBS, VOA and many other TV and radio networks, on such programs as Nightline, The News Hour with Jim Lehrer, The O'Reilly Factor, etc., has been quoted in newspapers throughout the world and is a published author.

A former opponent of capital punishment, he has written and granted interviews about, testified on and debated the subject of the death penalty, extensively and internationally.

Pro death penalty sites

homicidesurvivors(dot)com/categories/Dudley%20Sharp%20-%20Justice%20Matters.aspx

www(dot)dpinfo.com
www(dot)cjlf.org/deathpenalty/DPinformation.htm
www(dot)clarkprosecutor.org/html/links/dplinks.htm
www(dot)coastda.com/archives.html
www(dot)lexingtonprosecutor.com/death_penalty_debate.htm
www(dot)prodeathpenalty.com
www(dot)yesdeathpenalty.com/deathpenalty_com
yesdeathpenalty.googlepages.com/home2 (Sweden)
www(dot)wesleylowe.com/cp.html

Permission for distribution of this document, in whole or in part, is approved with proper attribution.

USpace said...

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

when they are murdered
in cold blood by other thugs

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

even if they prefer death
over life in prison

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

guns are for criminals
just hope police show in time

.
absurd thought -
God of the Universe says
prosecute citizens

when they kill home invaders
threatening their families

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

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

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

:)
.