Don't Plead History and Bruen in Cruel and Unusual Punishment Challenge to Long Prison Sentence for Rape, When Rape Was Historically a Capital Crime

From yesterday's decision of the Iowa court of Appeals in Cue v. State, written by Judge Tyler Buller and joined by Judges Julie Schumacher and John Sandy:

Cue's … application for postconviction relief … cited New York State Rifle & Pistol Ass'n v. Bruen, 597 U.S. 1 (2022), to claim that Iowa's mandatory-minimum-sentencing scheme for certain class "B" felonies (seemingly as applied and on its face) was incompatible with our historical traditions and therefore cruel and unusual punishment. The district court denied relief, finding Cue cited "absolutely no authority to support his proposition that the Bruen test should be profoundly expanded to include sentencing schemes for sex offenses." …

Cue pled guilty in 2019 to four counts of sexual abuse in the second degree, class "B" felonies in violation of Iowa Code section 709.3(1)(b) (2017), for raping and molesting his minor children over the course of years. The sentencing court ran half of the counts concurrent and half consecutive, amounting to two consecutive twenty-five-year prison sentences, each of which has its own 70% mandatory minimum. We affirmed on direct appeal….

[W]e reject any claim grounded in Bruen. We recently disposed of a similar Bruen challenge to the statute of limitations for postconviction relief….

First, we are … aware of no court expanding Bruen beyond the Second Amendment, and Cue … offers no compelling reason we should be the first.

Second, existing Iowa law requires us to reject the claim. See State v. Laffey (Iowa 1999) (rejecting a cruel-and-unusual-punishment challenge to an identical prison sentence for identical convictions, with an even greater mandatory minimum).

And third, history does not favor the leniency Cue seeks: rape was a capital crime when the Eighth Amendment was adopted. Bruen is not a magic talisman reopening litigation of every constitutional right for prison inmates, and it is no basis for relief on Cue's claims….

Louis S. Sloven, Assistant Attorney General, represents the state.

Comments

[JoeFromtheBronx]

John Bessler, Sen. Amy Klobuchar's husband, has written some interesting stuff. He released Justice Breyer's dissent in Glossip v. Gross in book form with commentary. He also wrote Cruel and Unusual: The American Death Penalty and the Founders' Eighth Amendment.

[Michael Ejercito]

If I recall correctly, Breyer opined that the death penalty per se violated the Eigth Amendment

[NvEric]

Reducing rape from a capital crime only lessens liberty at the expense of us all. Without stressing personal responsibility throughout life there can be no liberty. Stressing liberty without regard to person responsibility lessens liberty itself.

People vary in their self-control, but that is no excuse when transgressing on others. Spouting on about freedom and liberty exclusively, fails when the reason for them is not given, which is to enjoy those two by using self-control and accepting responsibility for one's actions.

People, generally, being self-absorbed, possessing various desires, their self-interests must be made to fit into their delineated social and legal structures if there is to be any freedom and liberty - terms whose meanings are conditional in ordered society.

What law and legal practice must do is maximize certainty of events and filter out uncertainties, something which needs improving and may be problematic. Becoming acceptable to rote and tradition and 'the real world' does not produce worthwhile results all the time. Complacency and acceptance of ills must not be tolerated.

[Sarcastr0]

You act like the sentence for rape is now community service or something.

You also seem to think the threat of criminal law is the main way people, generally, are discouraged from becoming rapists.

[hobie]

Crime is relative in this new age. Political connections are the mitigating factors

[Stephen Lathrop]

Nothing novel about that. Maybe, "new," in the sense that reversion to a recently disused previous norm is new.

[Frank Drackman]

Kentucky had it right, Death by Pubic Hanging , in the County the Rape was committed in.
How many more rapes did Rainey Bethea commit?

Frank

[mse326]

Under your theory any and all crimes that "[transgress] on others" should be a capital crime, even the most minimal of assaults or presumably even non violent crimes where there is a defined victim. That is certainly a position to take, it sure as hell isn't one of liberty, though.

Also some of the biggest advocates for rape not being a capital crime are rape victim advocates because there would then be less incentive not to kill them afterwards. I don't know empirically whether that would lead to more rape-murders but the is seems to me the statement itself seems to be a incontrovertible truth. So there is a strong theoretical reason to say we shouldn't do it (that doesn't mean there aren't also strong theoretical and/or moral reasons to do it).

I think SCOTUS is wrong to say it is unconstitutional, but the wisdom of it as a policy matter is far from clear.

[Flight-ER-Doc]

Was this guy pro per? Because that sounds like ineffective assistance of counsel.

OTOH, Sure! Lets treat rape the way we did during the founding!

[Frank Drackman]

Is a rape up your A-hole any better for you in 2025 than it would have been in 1776?

[Flight-ER-Doc]

I'm willing to defer to your experience, but having treated the victims of sexual assault I'd say generally not.

[TwelveInchPianist]

In 1776 it was buggery.

[ReaderY]

Well, it was worth a shot. Especially if, as may well have been the case, defense counsel has no better argument to make.

[wvattorney13]

Agreed. I like the creativity but the court got it right.

[Stephen Lathrop]

The OP headline suggests too much.

During a centuries-long interval in the not-too-distant past, felonies of many kinds were capital crimes. Along with too-insistent religious non-conformity, disregard of banishments, and mere disregard of a duty of feudal loyalty owed to a sovereign.

For a great many people in class-bound societies, even to be found living in the wrong place at the wrong time could be a capital crime. As a practical matter, for some people, to demand non-arbitrary, uniform enforcement of criminal laws for everyone, might prove a capital crime.