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March 11, 2008

Colorado moving forward with capital child rape bill

I see from this Denver Post story that the Colorado senate is moving forward with a bill to make child rape a capital offense.  Here are excepts from the article:

Colorado could put child rapists to death under a bill that won a Senate committee's approval Monday and would put the state on par with just five others that allow the execution of such sex offenders. Prosecutors could try for the death penalty in cases in which rape victims are 12 or younger, where DNA evidence is present and where the perpetrator has been previously convicted of a sex offense against a child....

Colorado public defenders, who oppose the bill, originally estimated that it would make about 260 people a year eligible for the death penalty. It was unclear what an amendment, which limits the bill to repeat offenders, would do to that estimate.

In Louisiana, the one state that has sentenced child rapists to death, prosecutors have made capital cases of only two out of 180 eligible cases. Constitutional challenges immediately followed the first of those two sentences, and the U.S. Supreme Court is expected to rule by June whether death is cruel and unusual punishment for felons who have not taken a life.

Colorado joins Alabama, Missouri and Mississippi in seeking death for child rapists this year. Montana, Oklahoma and South Carolina have passed similar laws since 2006, and Louisiana and Texas both approved such legislation in the mid-1990s, said Richard Dieter, executive director of the Washington, D.C.-based Death Penalty Information Center.

One of the many strange ironies of the Supreme Court's doctrines in this area is that the constitutionality of Colorado's proposed capital child rape law may depend upon whether Colorado (and Alabama and Missouri and Mississippi and other states) formally enact a capital child rape law.  If a significant number of states were to make child rape a capital offense over the next few months, the Supreme Court in the Kennedy case from Louisiana would almost have to conclude that "evolving standards of decency" show that society does not regard capital child rape as a cruel and unusual punishment.

Some related posts on the Kennedy case and capital child rape legislation:

March 11, 2008 at 04:19 PM | Permalink

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» Is There a Trend? from Sex Crimes
With the Respondent's brief in Kennedy v. Louisiana today, I have the case on my mind. One of the key points in the matter will be whether there is an evolving trend toward applying the death penalty to the crime [Read More]

Tracked on Mar 12, 2008 1:51:06 PM

Comments

There are four votes on the Supreme Court to toss these laws, no matter how many states enact them. The wild card is Justice Kennedy. On the death penalty, four out of the nine Justices are lawless.

Posted by: federalist | Mar 11, 2008 5:23:34 PM

I like that. Justices that disagree with me are lawless. Others are lawful. I bet if I repeat that enough I can get elected.

Posted by: S.cotus | Mar 11, 2008 5:41:00 PM

If a significant number of states were to make child rape a capital offense over the next few months, the Supreme Court in the Kennedy case from Louisiana would almost have to conclude that "evolving standards of decency" show that society does not regard capital child rape as a cruel and unusual punishment.

This assumes that Roper v. Simmons was decided in good faith and that Justice Kennedy's state-counting approach actually drove the result. It's interesting to see states actually trying to call him on it. I'm hesitant to label judges as "lawless," but I think it's fair to say that the Roper decision was lawless.

------------

S. cotus, you could probably make that work. The beauty of it is that the slogan would work for either party. And anyone who calls you on it is just defending lawless judges, so why should anyone listen to them? As long as you're good looking, articulate, and stay away from the expensive prostitutes, that slogan could take you places.

Posted by: | Mar 11, 2008 5:59:52 PM

Of course, to make such an observation, S.cotus, you are dressing up the power of the Court--if they say so, it is law, in that we are required to listen, but that's not what I am getting at, and I think you know it. And I think it easier to call Justices Stevens, Ginsburg, Breyer and Souter lawless on the death penalty than to give their ipsedixitism any more credibility than calling what it is, the raw exercise of power.

And, of course, it may come down to a situation where the government decides one day to ignore the Supreme Court. Likely not going to happen in context of the death penalty, but something that certainly could happen in terms of the treatment of unlawful combatants and terrorists. Moreoever, the Supreme Court risks, for all time, its power, when it decides to act lawlessly, e.g., Dickerson and Roper. If push ever comes to shove and the Court loses, then what? That's a big risk to take just to save a few juvie murderers.

Posted by: federalist | Mar 11, 2008 7:22:26 PM

Moreoever, the Supreme Court risks, for all time, its power, when it decides to act lawlessly, e.g., Dickerson and Roper.

Please explain. My sense is that the court risks very little so long as it reaches results in its cases that either track or accurately predict popular opinion. Lawrence v. Texas, for example, is probably not going to hurt the court because popular opinion is heading in the direction of greater acceptance of gays. Thus, although Lawrence will anger conservatives, the public will gradually accept it and any new enemies the court gains will either die off or get over it. The only risk the court takes in trying to track and predict popular opinion is if it moves to quickly. If, in 2003, it mandated legalization of gay marriage in all US jurisdictions, then the backlash would probably hurt it. But it knows better.

It's for that reason, I think, that the more liberal-minded members of the court prefer to chip away at the death penalty than to abolish it outright. If they abolished it, the institution might be threatened by the backlash. But a chip here and a chip there, and they risk little. And only the people with JDs know just how shoddy and lawless the majority opinions are. The public only knows that it's now unconstitutional to execute minors and retarded people, and that development is unlikely to start a revolt.

I don't think that tracking or predicting public opinion are appropriate things for a court to do, but there are some lines of cases where that's an accurate description of what it in fact does. And, as I've tried to explain, I don't think that the court "risks, for all time, its power" when it does that. Perhaps that's unfortunate...

Posted by: | Mar 11, 2008 7:50:59 PM

Ugh, these discussions invariably lead to confrontations over the legitimacy of Marbury v. Madison from at least ONE poster.

I do not think this is going to be an easy case, when examining precedent. Recent decisions lead me to believe that Justice Kennedy will be opposed to these new laws, but I would not place on money on that bet. There are other troubling aspects of the LA law that could allow the Court to dodge the hard issue, but I don't think under the circumstances it would be proper. But I suppose that is a good question: could the court invalidate the LA law at issue because of its failure to provide guidance to juries (i.e., the state high court's analysis of the statute as providing adequate guidance was flawed) without reaching the issue of executions for child rapists? That would appear to be a dishonest approach but it would hardly be unprecedented.

I do not believe that the statute provides the guidance necessary to distinguish the subclasses of defendants who would be death-eligible from those convicted of the crime generally. I found the petitioner's argument fairly persuasive on this point. On the other hand, an opinion holding that the death penalty is per se unavailable under these circumstances calls the use of the DP in all non-homicide crimes into question. That does seem to be the direction the Court has been headed in for the last few decades.

Interestingly, do you think the administration will take a position on this case? Considering the possible future contours of the "war" on terrorism, as well as federal crimes authorizing the DP, I would think the DOJ would take a position supporting Louisiana.

Finally, re: evolving standards of decency, it is not only the number of states but also the force of the trend, right? How does recency play into that analysis? It has been too long since I took sentencing and dealt with the 8th amendment jurisprudence.

Posted by: Alec | Mar 11, 2008 8:31:48 PM

Ah, since Federalist (an admitted non-lawyer) says that the Supreme Court was acting “lawlessly” it must have been.

7:50:59 PM, I would go one step further. Since the Supreme Court’s decisions (on constitutional issues) will be accepted by lower courts and in rather short order they will become ingrained in the mindsets of all lawyers, the public has little choice but to follow them. If, on the other hand, the Supreme Court does something that injures the middle class, it is rather easy to concoct a statutory remedy. When it comes to protecting the lower classes, nobody cares too much one way or the other.

Posted by: S.cotus | Mar 11, 2008 8:42:08 PM

My point, inartfully made, is that the Supreme Court loses credibility when it does these things, and when they interfere with something that people do care about, e.g., the war on terror, and they wind up being the cause of something major (e.g., some terrorist forced to be released kills a bunch of American soldiers or caps off a dirty bomb in NYC), then the Court as an institution will have problems. And they may find the reservoir dry.

I would love to see a "It's Marshall's decision, let him enforce it." moment again. This Court badly needs it.

Posted by: federalist | Mar 11, 2008 8:45:41 PM

Ah, the Supreme Court “loses credibility.” I wonder what that means. Does that mean that a person that feels injured would by say, being beat up and raped by the cops, and being told by lower courts that qualified immunity applies to his 1983 action would not think of seeking cert? I am genuinely interested in what the lay people consider to be a loss of judicial credibility. Are “the people” no longer offering defenses to criminal charges? Are “the people” directing their state solicitors general to no longer appear in habeas matters in federal courts?

I doubt that most people have any idea about what the Supreme Court does. The best they have is a summary of a decision written by the loser who naturally will say that the decision is wrong. (Although the Supreme Court technically posts is opinions on the internet, it is virtually impossible for non-lawyers to read them.)

Do “the people” care about the “war on terror”? Considering that the “war on terror” can pretty much mean anything we want it to (it has no real legal parameters, and no operative definition), it is hard to see whether people really “care” about it. At least the “economy” can be measured in terms of how much money is in someone’s bank account. At least “justice can be measured in terms of a jail sentence (albeit somewhat ham-handedly). But, a “war on terror” is nothing more than an advertising slogan. (In fact, some advertising and PR firms, will, for a fee, get people to think that your business somehow has something to do with this “War on terror.”)

With regard to the Supreme Court’s decisions, it has been called upon to resolve difficult issues. Since you are a non-lawyer, I don’t expect you to understand them (some of these decisions are quite long). The administration has always fully participated in briefing and arguing before the Supreme Court, so it is unlikely that it would simply decide to not follow a decision and risk individual actors being held in contempt, when it could try and seek a constitutional amendment or a change in a statute. Alas, proposed changes to statutes have met with political resistance (and the administration had had to compromise much more than it would admit when speaking to non-lawyers) and no serious efforts to amend the constitution for “security” reasons have been proposed. It was considered far more important to try to amend the constitution for gay marriage or flag-burning reasons, than, to, say, limit the reach of the 5th amendment to non-Arabs and non-Puerto Ricans as you seem to propose.

Your quote about John Marshall was probably apocryphal. Whatever the case, I find it somewhat odds that you are urging the bureaucrats not comply with lawful orders, but you somehow think that people that are not part of the government must comply with laws and go to jail.

Posted by: S.cotus | Mar 12, 2008 6:24:09 AM

Alec, I'm interested in this part of your comment:
Ugh, these discussions invariably lead to confrontations over the legitimacy of Marbury v. Madison from at least ONE poster.

I do not think this is going to be an easy case, when examining precedent. Recent decisions lead me to believe that Justice Kennedy will be opposed to these new laws, but I would not place on money on that bet.

1. Maybe I'm being dense, but I'm missing the connection between this discussion and Marbury. I don't think "federalist" is arguing that judicial review is somehow illegitimate, rather that the court should decide cases according to some kind of objectively explainable principles, and that if it doesn't it will somehow lose credibility with the public. I don't completely understand the argument, but I don't see the Marbury connection.

2. I don't know whether this will be an easy case, but the Supremes can make it into an easy case if they want. They have Coker, and there'a plausible broad reading of it and a plausible narrow reading of it. If they want to hang onto Coker because of stare decisis instead of writing on a clean slate, they don't need to do much work to come out either way. Roper throws a bit of a wrench into it, but not much.

Posted by: | Mar 12, 2008 11:09:06 AM

Although I did not make the Marbury comment, I think his objection is to decisions by the court that he disagrees with. He believes that they (or what the media tells them they are – as he has admitted to not being a lawyer) are somehow illegitimate. Somehow, he believes that if there is a dispute as to the proper construction of two sources of law (i.e. two statutes, or a statute and the constitution) the court is obliged to rule in the way that he favors.

He also seems to have argued that certain decisions of the courts should not be enforced. This is a little strange, because he seems to have no problem with the federal government and states appearing in courts (as well as participating in briefing), but he seems to be arguing that although there should be some pretense towards the legitimacy of an independent judiciary, the federal government should say “our representations and participation in court is for show only, and we will never be bound by anything you say.”

Posted by: S.cotus | Mar 12, 2008 11:55:43 AM

I wonder if we'll see greater enforcement of and tougher penalties for violations of kiddie porn.

Posted by: | Mar 12, 2008 11:57:44 AM

S. cotus, I'm not sure that you're being totally fair.

I agree with you that there are a lot of simple-minded criticisms of court decisions out there. And I agree that none of the commenters have challenged the idea of an independent judiciary.

But is it so wrong to suggest that the country would benefit from some amount of pushback against the Supreme Court? And is pushback necessarily an all-or-nothing proposition? If the Supreme Court came up with a ruling that was completely absurd (all Ohioans must be deported by the end of the month), I think that the government could properly decline to enforce that without having to stop appearing in court in other matters. I don't pretend to know how one would avoid the slippery slope between declining to enforce that sort of a ruling and declining to enforce something else, but the question seems to be worth asking.

Posted by: | Mar 12, 2008 1:27:52 PM

Well, if the Supreme Court did that, there would be an easy enough remedy: amend the constitution. However, it is unclear whether we would really want people from Ohio to stay that badly.

If it stopped appearing in court, it would simply not be able to seek the court’s aid in ANYTHING, and could secure criminal convictions. At some point our entire constitutional scheme would fail, if the government were to then insist that it could detain everyone without trial as it no longer recognized the legitimacy of the courts. Alas, this has not happened.

Anyway, I do agree that it is good that we think about these doomsday scenarios. However, even the current administration has not pushed us there, yet.

Posted by: S.cotus | Mar 12, 2008 1:32:04 PM

S.cotus, if the Supreme Court decided that all Ohioans should be deported, then I dare say that the decision would be ignored.


Posted by: federalist | Mar 12, 2008 11:34:49 PM

To 11:09:06

1. S.cotus has essentially made my point for me. For some (media and politically driven) reason many people equate disagreement with a result the Court reaches with the illegitimacy of judicial review, a point federalist regularly intimates or invokes. He is not alone, of course; plenty of *political* conservatives share his view, and they have made a point of flooding the legal market with like-minded minions. See, e.g., the Federalist Society. Perhaps the most frustrating part about this debate is the refusal to acknowledge the natural ends of such "comprehensive" approaches to judicial philosophy. No "originalist" or "strict constructionist" would deliver Brown v. Board, much less strike down prohibitions on interracial marriages, contraceptive devices or sodomy laws. To say nothing of abortion or "gay" marriage. "Objectively explainable" standard is a misnomer in an age of Bush v. Gore and Gonzales v. Raich. Consistency is not the virtue sought by these critics of the Court. Plenty of my classmates happily blast the forced reasoning of the Court without resorting to polemic jihads; ironically, none of them belong to the Federalist Society or their liberal counterparts.

2. True, they can either narrow or broaden their reading of precedent, but I think they should at least use it as opportunity to guide lower courts on the challenges that will inevitably follow their decision, regardless of the actual holding. There is no "easy way out" in this case. What would constitute a death-eligible prior in states that require one? Child porn? Accosting a minor? Sex with a minor just over the age of 12, or just under the age of 18? What about non-sexual offenses? Treason, drug trafficking, etc.? Perhaps recidivist DUI offenders will be death eligible? What guidelines need to be provided to juries?

Posted by: Alec | Mar 13, 2008 1:24:46 AM

Likely, a decision to deport people from Ohio would initially be proposed by the executive. While some liberals might challenge it as being “unconstitutional” the executive would explain that people from Ohio are a threat to national security (much like people from Texas are criminals) and would explain that it is all part of the Global War on Terror. The liberals would go to court. The District Court would issue an injunction. The Sixth Circuit would reverse it, saying that the issue wasn’t ripe. The Supreme Court would deny cert.

Are you really saying that a denial of cert. on a global war on terror issue would be “ignored”?

Whatever the case, I would feel a lot safer because I was told about the threat they posed to the US.

Posted by: S.cotus | Mar 13, 2008 7:18:00 AM

No "originalist" or "strict constructionist" would deliver Brown v. Board, much less strike down prohibitions on interracial marriages, contraceptive devices or sodomy laws.

McConnell and Bork have both argued that the result in Brown was right under originalist principles. I know that Wilkinson has written about it, but I haven't read his stuff closely. I'm not sure if I'm convinced, but the arguments are quite good, particularly Bork's. McConnell's argument is in Jack Balkin's What Brown Should have Said, and Bork's is in Tempting of America

As for the rest of it, I think a lot of people are forthright and honest about the results an "originalist" approach would reach. Their response is often that many of those rights aren't in the Constitution, and looking to the courts to strike down these things ignores the other 2 branches of government. If you don't like bans on contraception, hold the legislators accountable.

course; plenty of *political* conservatives share his view, and they have made a point of flooding the legal market with like-minded minions. See, e.g., the Federalist Society.

There are a lot of people in the Federalist Society. Some are more intellectually honest than others, and some are more conservative than others, but this is just an unjustified smear. FedSoc and ACS are doing more than any other other group I know of and more than the law schools to get people thinking and talking about what judges and courts are supposed to be doing. Like many other groups, each has its share of hacks, but your ciritcism is not justified.

Plenty of my classmates happily blast the forced reasoning of the Court without resorting to polemic jihads; ironically, none of them belong to the Federalist Society or their liberal counterparts. I don't think anyone has suggested that one needs to be a member of a legal debating society to complain about the Supreme Court. I don't think one even needs to be literate.

Posted by: | Mar 13, 2008 9:27:10 AM

I will second the thought that FS and ACS are probably a positive force for setting up panel discussions in law schools. Often they work together. However, FS lawyer chapter event that I have attended was filled with anti-intellectual morons intent on glad-handing each other.

Posted by: S.cotus | Mar 13, 2008 10:03:49 AM

The most honest definition of "judicial activism" is that whatever the court says that one disagrees with is "illegitimate activist judges" while whatever the court agrees with is "legitimate." That seems to be the definition used by federalist.

I think you can make a good originalist argument relating to Loving v. Virginia - because the 14th Amendment prevents states from depriving residents of equal protection which had the original purpose of ending state discrimination based on race and assure that the newly freed slaves were treated equally. Thus, when the proper originalist question (Does the Constituion enable the states to prohibit marriage by persons of different races) is asked, the answer is obvious based on the original understanding that the state laws treat people differently based on their race. The fact that the 19th Century Supreme Court was hostile to the idea of equal rights (despite the Constituional intent and language) does not alter the fact that the original understanding of the Fourteenth Amendment would strike that law down. Obviously, the textualist argument is much stronger - and expands the Fourteenth Amendment's reach to cover any unequal treatment of persons by a state government. Proponents of an amendment barring gay marriage are implicitly acknowledging that the plain language of the Fourteenth Amendment should strike down any law barring gay marriage as a denial of equal protection.

I always wonder why the people who call about a "push back" against the Court are often right wingers when the left has way more legitimate complaints about recent Supreme Court jurisprudence (see e.g., the use of the due process clause to cap punitive damages against large corporations which is oddly enough most strongly opposed on the Court by Scalia who recognized that the Court was litigating from the bench). In the business cases which comprise the majority of the Supreme Court's docket, the Court has been repeatedly cutting back on worker's protection, consumer protection, the ability to bring law suits against corporations, and access to courts. All of this gets little attention even though it has way more effect on the general public than whether gay people can get married, abortion rights, or whether a 17 year old murderer or a child molester will be executed.

Posted by: Zack | Mar 13, 2008 11:46:49 AM

Zack, I disagree regarding whether “business” cases comprise the majority of the court’s docket. While there are many ways to count (i.e. total number of petitions, grants, GVRs excluded), businesses simply are not at the top of the list. But, let’s play your game. Let’s look at the 2007 term slip opinions. (Since I have read every Supreme Court case – as most lawyers have – I can do this largely from memory.) Anyway, I count NINE out of the 23 being mostly business issues. This isn’t a majority. But, of the 9, most of them have major applicability to most litigants.

BOE v. Tom F: IDEA
Allen v. Sieberg: habeas
CSX v. GA: business/stat tax
Logan v. US: Sentencing/ACCA
Gall: Sentencing
Watson: criminal
Kimbrough: sentencing
Arave: crim pro (plea bargain)
Wight: crim pro
JR Sand: Tucker Act (this isn’t strict business-related, but I will give it to you)
Stoneridge: Securities/business
Knight v. CIR: tax (I can’t really call this business-related)
Lopez-Torres: elections
Ali v. BOP: prisoner/FTCA
LaRue: ERISA (arguably business)
Danforth: crim pro
Riegel: tort (arguably business)
Preston: contract (business)
Rowe: Business
Sprint: ADEA (arguably business)
Fedex: ADEA (arguably business)
Bouleware: criminal tax evasion by individual
Warner-Lambert: tort (arguably business)

There are a couple of “judicial activism” definitions that I don’t think carry ideological baggage.

1) Judicial invalidation of a statute – for any reason – can be considered activism. But, this applies to everyone. So, invalidating a statute that taxes ONLY chemical companies on their gross receipts is activism, as is invalidating a statute that prevents the use of cops as “experts” in gang trials.

2) Judicial use of arguments not advanced by a party to the lawsuit. This is the one with the most appeal to me. To me, it is the height of “activism” to rest a decision on a ground not advanced by either party, or to provide a remedy (or a sentence) not sought by either party.

Posted by: S.cotus | Mar 13, 2008 12:17:40 PM

You're right, I wasn't thinking of criminal law and was thinking only of the civil cases heard by the court (I must have been working on the civil/administrative side of law too long, but that was major omission on my part). Obviously, I have much different interests than the general public in that I am primarily interested in issues of administrative rulemaking, statutory interpretation, and federal preemption since those are the issues I deal with the most (and its actually my favorite legal category anyway).

Still, while one year is not a statistically significant sample (but honestly, neither you nor I as practicing attorneys likely have the time to do one) there is a very large portion of the docket, which while great interest to business groups and lawyers gets limited attention from the general public. Compared to the amount of attention paid to relative non-issues like flag burning, the stuff which really effects people gets limited attention from non-lawyers (actually a lot of the criminal law cases are in this category as well). Of course, when you are like me and find federal preemption, statutory interpretation, Chevron deference, and the negative commerce clause interesting topics, you have a hard time relating to those who are only interested in the "hot button" cases.

Posted by: Zack | Mar 13, 2008 2:00:03 PM

Rules

1) Every lawyer thinks their area of law is the most important
2) Therefore, the most important laws should be given the most attention by the Supreme Court
3) Currently the Supreme Court does not pay enough attention to areas of law described in #2
4) Lay people and the media will believe anything a PR firm tells them

Posted by: S.cotus | Mar 13, 2008 2:38:09 PM

Of course, when you are like me and find federal preemption, statutory interpretation, Chevron deference, and the negative commerce clause interesting topics, you have a hard time relating to those who are only interested in the "hot button" cases.

I hate how every lawyer whose interest in "law" extends beyond the culture wars and Law & Order thinks that s/he's part of some secret society of eggheads who are misunderstood by the outside world and by the rest of the legal profession. I'm guilty of this myself on occasion, but I don't like it when I do it, especially with the added feigned embarrassment.

When people talk like this, the message isn't "I'm a self-effacing intellectual." Rather, it's "I thought I'd remind you philistines that I'm just a *little* bit better than you. We future Supreme Court Justices are often ostracized and misunderstood because of our weighty intellects."

Posted by: | Mar 13, 2008 2:52:06 PM

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