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June 26, 2008

Culture of life trumps democracy and state experimentation in Kennedy

I have now read carefully both opinions in Kennedy, and can share a few jurisprudential observations and provide my summary take-away:

1.  I was surprised (and somewhat disappointed) by how categorical and "traditional" the Court's Eighth Amendment work was in Kennedy.  Rather than a nuanced outcome like we got in Baze, the majority set out a bright-line rule to eliminate any real possibility for the death penalty for non-homicide cases.  And rather than thoughtfully explore any new approaches to the Eighth Amendment in this context, we get the tired (and silly) state-counting "moral consensus" debate and the now-standard arguments about the Court's independent judgment.

2.  Though both Justice Kennedy and Justice Alito make their arguments effectively, neither puts forward any jurisprudentially provocative ideas (and the silence from all the other Justices is deafening).  Given the mess that is the Court's capital Eighth Amendment jurisprudence and the distinctive gender issues raised in this setting, I was hoping someone (like the new Chief or Justice Ginsburg) would provide some fresh jurisprudential meat for us academics.  (I cannot help speculating what might have been in Kennedy if it had not been argued until the start of OT 2008, rather than at the end of OT 2007.)

3.  The notion that death is different, both as a punishment and as a crime, finds expression in the outcome and the entire tenor of the majority opinion.  Fans of a "culture of life" should really like what the majority is doing and saying.

4.  This telling sentence at the end of the majority's work captures the essence of its attitude toward these matters:

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.

Even if one accepts this bold and bald assertion about how to best serve justice in "most cases," I still think a strong structural argument can be made for allowing democratically elected state legislatures and executive officials to experiment with serving justice through the use of the death penalty in at least some extreme child rape cases (particular as involves repeat offenders with multiple victims).

That all said, the symbolic importance of Kennedy should not overshadow its practical insignificance.  Nearly all awful child rapists would serve extended state prison terms no matter how these jurisprudential debates were resolved, and the really consequential constitutional issues concerning sex offenders are still percolating in lower courts.

June 26, 2008 at 12:24 AM | Permalink

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Comments

Doug wrote, "Nearly all awful child rapists would serve extended state prison terms no matter how these jurisprudential debates were resolved..." I agree, which is why I don't understand why you think Justice Kennedy's statement that "[i]n 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" constitutes a "bold and bald assertion." It sounds like you (and even most district attorneys across the nation) would in fact strongly agree.

Posted by: DK | Jun 26, 2008 12:38:22 AM

Doug
"I still think a strong structural argument can be made for allowing democratically elected state legislatures and executive officials to EXPERIMENT with serving justice through the use of the death penalty"

Breathtaking - and totally at variance with your earlier declaration that it is time for all death penalty matters to be taken out of the jurisdiction of States to become an entirely federal matter.

Your entire summary is of course highly provocative, but much in line with your increasingly out-of-step tone in this debate.

Posted by: peter | Jun 26, 2008 3:11:33 AM

Doug:

I thought it would be a long day in December before you, I and none other than Barack Obama would agree on a case of this importance, but it seems to have happened.

MSNBC reports the Obama view thusly:

CHICAGO - Democrat Barack Obama said Wednesday he disagrees with the Supreme Court's decision outlawing executions of people who rape children, a crime he said states have the right to consider for capital punishment.

"I have said repeatedly that I think that the death penalty should be applied in very narrow circumstances for the most egregious of crimes," Obama said at a news conference. "I think that the rape of a small child, 6 or 8 years old, is a heinous crime and if a state makes a decision that under narrow, limited, well-defined circumstances the death penalty is at least potentially applicable, that that does not violate our Constitution....

"[While having reservations about its application in many cases,] Obama has never rejected the death penalty entirely. He supported death sentences for killing volunteers in community policing programs and for particularly cruel murders of elderly people.

"While the evidence tells me that the death penalty does little to deter crime, I believe there are some crimes — mass murder, the rape and murder of a child — so heinous, so beyond the pale, that the community is justified in expressing the full measure of its outrage by meting out the ultimate punishment," he wrote in his book 'The Audacity of Hope.'"


Posted by: Bill Otis | Jun 26, 2008 7:34:39 AM

DK - I think you're reading a whole lot more into Professor B's statement than is there. He pointed out that most child rapists get long prison terms. I don't think that in any equates to agreeing that these long prison terms "serve justice" better than the death penalty. That concept is so inherently subjective, the statement that one form of punishment or another "serves justice better" is necessarily subjective (and therefore a bald assertion without supporting rationale).

Posted by: NewFedClerk | Jun 26, 2008 7:45:46 AM

Doug:

There were two points of your analysis that I thought were particularly spot-on:

1. "And rather than thoughtfully explore any new approaches to the Eighth Amendment in this context, we get the tired (and silly) state-counting 'moral consensus' debate and the now-standard arguments about the Court's independent judgment."

The state-counting enterprise has always struck me as not merely silly, but a gross deviation from any proper judicial function. If finding a popular consensus has any business in Eighth Amendment jurisprudence, I have yet to hear why. Giving effect to popular consensus is quintessentially a job for the political branches, not the courts.

2. I also thought you nailed it in taking on this passage in the majority opinion:

"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."

Yikes. First, in "most cases" there isn't going to be a death penalty for child rape at all. Indeed, in Louisiana, only two men had been given death sentences for that crime even though the law had been on Louisiana's books for several years. So even if the majority's conclusory observation about what better serves justice in "most cases" were correct, it is inapposite to the one case upon which the Court was called upon to rule.

In fact, the majority's observation was not merely incorrect but preposterous. The idea that these inmates sit around contemplating the "enormity of their offenses" is just completely divorced from reality. What they actually sit around doing is writing lawsuits accusing their counsel of being in a Conspiracy With The State and demanding a bigger TV in their cell. This is in those moments when they're not carving a shank from the leg of their bunk to use to in the next melee in the exercise yard.

The majority's passage made me wonder whether Justice Kennedy has taken the time to actually talk to anyone who works in a prison.


Posted by: Bill Otis | Jun 26, 2008 8:01:35 AM

NewFedClerk:

Justice Kennedy has been writing subjective conclusions into his opinions for years -- and passing them off as Received Wisdom.

I don't know that he's the most sanctimonious person I ever met, but he's in the running. Stevens, though considerably more liberal overall, does not take himself nearly as seriously.

Posted by: Bill Otis | Jun 26, 2008 8:10:12 AM

Doug wrote, "Nearly all awful child rapists would serve extended state prison terms no matter how these jurisprudential debates were resolved..." I disagree. Most of these offenders receive considerable plea bargains in an effort to avoid testimony of the victim.

Posted by: Steve | Jun 26, 2008 8:34:10 AM

How many tears have been shed over St. Obama's comments?

Posted by: Anonymous | Jun 26, 2008 9:00:51 AM

Bill Otis, divorced from reality, wrote: "The idea that these inmates sit around contemplating the 'enormity of their offenses' is just completely divorced from reality. What they actually sit around doing is writing lawsuits accusing their counsel of being in a Conspiracy With The State and demanding a bigger TV in their cell. This is in those moments when they're not carving a shank from the leg of their bunk to use to in the next melee in the exercise yard."

The idea that inmates sit around writing lawsuits accusing their counsel of being in a Conspiracy With The State and demanding a bigger TV in their cell is just completely divorced from reality. What they actually sit around doing is reading, writing letters to loved ones and penpals, studying, and recreating. This is in those moments when they're not working.

You obviously get your information from television, Bill, and it's quite disturbing how seriously you take yourself.

NewFedClerk wrote: "I think you're reading a whole lot more into Professor B's statement than is there. He pointed out that most child rapists get long prison terms. I don't think that in any equates to agreeing that these long prison terms "serve justice" better than the death penalty. That concept is so inherently subjective, the statement that one form of punishment or another "serves justice better" is necessarily subjective (and therefore a bald assertion without supporting rationale)."

I'm pretty sure Doug does not believe most child rapists should be executed. In other words, he believes long prison sentences "serves justice better" in most cases. In short, he believes exactly what Kennedy wrote (as do the overwhelming majority of people). That's why I don't understand what about the statement makes it bold and bald.

Posted by: DK | Jun 26, 2008 9:48:45 AM

DK:

"The idea that inmates sit around writing lawsuits accusing their counsel of being in a Conspiracy With The State and demanding a bigger TV in their cell is just completely divorced from reality. What they actually sit around doing is reading, writing letters to loved ones and penpals, studying, and recreating. This is in those moments when they're not working."

And just how do you know this?

"You obviously get your information from television, Bill..."

Actually I get it from having written and reviewed answers to prisoner petitions seeking to discharge (or sue) their lawyers for being in a Conspiracy With The State and/or to get a bigger TV in their cell.

"...and it's quite disturbing how seriously you take yourself."

Well, you know, "monsters" (your exact word -- do you deny it?) like Lincoln, FDR, Lewis Powell and now Barack Obama of all people, who along with me support the death penalty, can take these things pretty seriously, that's true. Still, we are no match for someone who takes himself so seriously as to pronounce those who disagree with him on criminal law issues as ipso facto racist -- which is what you do routinely and without batting an eyelash.


Posted by: Bill Otis | Jun 26, 2008 1:24:52 PM

Bill,

Why would I bat any eyelashes at calling people who publicly express racist propositions racist? You believe that criminal acts are caused by individual moral shortcomings, isn't that correct? I can walk you through this if you like, but I don't think you'll appreciate the ending.

And of course I don't deny that you are a monster. Actually, I'm pretty sure I said I think even less of you than that. From a position of social, economic, and political power, you sacrifice poverty-stricken human beings to the State to protect against expansion of social welfare programs. It's grossly immoral.

Presumably, monsters can't help themselves. You can but choose not to.

Posted by: DK | Jun 26, 2008 4:15:33 PM

The DP is always heinous and barbaric, and has no place in a decent society. The nature of the crime is a moot point.

Nigel.

Posted by: Dr Nigel Leigh Oldfield | Jun 26, 2008 5:24:44 PM

DK:

Let's try this one more time.

"The idea that inmates sit around writing lawsuits accusing their counsel of being in a Conspiracy With The State and demanding a bigger TV in their cell is just completely divorced from reality. What they actually sit around doing is reading, writing letters to loved ones and penpals, studying, and recreating. This is in those moments when they're not working."

And just how do you know this?

Posted by: Bill Otis | Jun 26, 2008 7:12:32 PM

Steve:

You're simply wrong in comparing cases that plea to cases that go to trial. For the purposes of the Kennedy discussion they are apples and oranges. In the average child rape case that results in a conviction at trial the defendant is looking at a decade or decades, and, in many states, SVP afterwards.

Posted by: karl | Jun 26, 2008 9:41:15 PM

Bill,

I get the sense that you believe that I am an ex-con. To you, that would be sufficient to discredit me. (I note it would not be enough to discredit me for rational people). I assure you, much to your dismay, that I am not. I am in fact a member of your privileged class. Now you'll have to deal with me strictly on our own terms. So I ask you one more time: You believe that criminal acts are caused by individual moral shortcomings, isn't that correct?

Posted by: DK | Jun 27, 2008 12:43:11 AM

DK:

I believe that when an adult of sound mind, acting intentionally, maliciously and without legal justification, kills, rapes, robs, beats, tortures, carjacks, burglarizes, or swindles one of his fellow creatures; or peddles LSD, heroin, meth or other dangerous (and sometimes lethal) drugs -- or, to use your shorthand, when he commits a criminal act -- that is a moral shortcoming (to put it mildly).


This is the belief you have proclaimed as "racist" (do you deny it?). The sheer nonsense of that claim is simply mind-boggling.

As to your other flights of fancy: (1) I don't know or care if you're an ex-con, and have never stated or implied that you are; (2) your arguments are discredited by their content, not your status; and (3) your self-proclaimed membership in the "privileged class" does not "dismay" me or spark any other emotional reaction, partly because I have no way of knowing if it's true, but mostly because it's irrelevant.

Now to return to the question your smoke machine is designed to evade: You said that the idea that inmates sit around writing lawsuits accusing their counsel of being in a conspiracy with the state and demanding a bigger TV in their cell "is just completely divorced from reality. What they actually sit around doing is reading, writing letters to loved ones and penpals, studying, and recreating. This is in those moments when they're not working."

And just how do you know this?

Posted by: Bill Otis | Jun 27, 2008 7:40:21 AM

okay bill, i'll bite. (for some reason this exchange is oddly amusing.) um, let me see: i guess defense lawyers, or really any of the various folks who work with prisoners, don't interact with their clients. at least not in any meaningful way that could possibly provide any insight about the sorts of things that weigh on their minds or what their daily life might consist of in prison. and obviously, we all know that they're evil lying scumbags anyway. a given, really. but, you, of course, in your all powerful and infinite wisdom do know! and can state with the absolute certainty of a sophomore that:

"What they [prisoners] actually sit around doing is writing lawsuits accusing their counsel of being in a Conspiracy With The State and demanding a bigger TV in their cell. This is in those moments when they're not carving a shank from the leg of their bunk to use to in the next melee in the exercise yard."

i think this was a Saturday Night Live sketch, right? you always crack me up. you're a too-perfect caricature. are you sure you aren't a screenwriter or a novelist? as you only exist in text for me, i tend to picture you as a writer of some sort, doing research or testing out your material on how to best portray this fictional character of the stereotypical over-zealous, nutty prosecutor. ah well, carry on!

Posted by: APBV | Jun 27, 2008 4:37:37 PM

APBV:

"i think this was a Saturday Night Live sketch, right?"

Nope. It's what crossed my desk at the United States Attorney's Office.

"...but, you, of course, in your all powerful and infinite wisdom do know! and can state with the absolute certainty of a sophomore that [prisoners spend time filing absurd law suits]."

I know what the work of my Office was, you bet. As for sophomoric stuff, I couldn't outdo what you've written, and won't try.

Posted by: Bill Otis | Jun 27, 2008 6:05:02 PM

A prosecutor resentfully reviewing the pro se applications of criminal defendants is going to have a somewhat biased view and is going to be basing his opinions on a biased sample (those defendants who file pro se appications).

On another note, I am disturbed that Professor Berman keeps advocating for "creative" death penalty jurisprudence in a way that seems to attempt to minimize the reality of state sponsored murder by moving it into an abstract theoretical realm.

Unfortunately, making brutal state sponsored practices academically acceptable seems to be in the air these days. See e.g. the tenureship of John Yoo.

Posted by: AdrianLesher | Jul 6, 2008 6:25:42 PM

Have to say that its kind of nice to find someone that knows what their talking about. M. G. L.

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