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October 2, 2008

Kennedy (lack of) rehearing wrap-up and the future of criminal justice federalism

Over at SCOTUSblog, Lyle Denniston puts a final spin on the Supreme Court's rejection of the rehearing petition of Louisiana in the Kennedy child rape case with this post titled "Analysis: The death penalty calculus is unchanged."  And How Appealing has helpfully collected all the major media coverage of the conclusion of the Kennedy case here.

As regular readers know, I am a big fan of criminal justice federalism and thus I remain disappointed that the Supreme Court's work in Kennedy now categorically prevents states from ever experimenting in any way with the death penalty for any kinds of child rape offenders.  But I am encouraged to discover, as noted in this AP article, at Governor Palin is talking up federalism principles when discussing the work of the Supreme Court and her concerns with Roe v. Wade:

"I think it should be a states issue not a federal government, mandated, mandating yes or no on such an important issue," said Palin.... "I'm in that sense a federalist, where I believe that states should have more say in the laws of their lands and individual areas," she added.

If legal issues arise again in tonight's VP debate, I hope Governor Palin will keep talking up federalism principles.  Indeed, given her admitted use of marijuana when she was younger, I would really like to see how she might respond to a question about federalism, Raich and state authority to decriminalize medical marijuana. 

October 2, 2008 at 09:47 AM | Permalink

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To finally put the blogger's nail in the Kennedy v. Louisiana coffin, here are some interesting links about rehearing (including a couple that were actually posted before the Court voted against rehearing):Death Penalty for Child Rape: How to Measure C... [Read More]

Tracked on Oct 3, 2008 11:52:03 PM

Comments

"I remain disappointed that the Supreme Court's work in Kennedy now categorically prevents states from ever experimenting in any way with the death penalty for any kinds of child rape offenders."

Let's call a spade a spade, prof. When you say experiment you mean kill people, right?

"But I am encouraged to discover, as noted in this AP article, at Governor Palin is talking up federalism principles when discussing the work of the Supreme Court and her concerns with Roe v. Wade:"

The quote is from the Couric interview. She went on to say that she believes that the federal Constitution contains a right to privacy, but that States should be free to apply that right differently. Kinda misses the point of federalsim, doesn't it? Either there's a federal right to privacy that means the same thing throughout the country, or there is no federal right, and states can experiment away.

Posted by: Anon | Oct 2, 2008 11:02:21 AM

I think what the Gov. meant was that there is some core privacy right, but that the states could, through their own laws, expand it. Remember, she's not a constitutional scholar. This may be an issue, but let's not forget that Slow Joe Biden ain't so hot either on the constitution. Ever hear him on Meet the Press?

Posted by: federalist | Oct 2, 2008 11:11:04 AM

Strangely enough Alaska DOES have a constitutional right to possession of small amounts of pot. Hopefully she will be rigorously questioned on this, and made to justify this abomination. She needs to explain whether she agrees or disagrees with Ravin and Noy. (If she can’t do that, she is a bad person.) She need to explain why she did not modify the Alaskan constitution to explicitly make possession of marijuana death-eligible.

Oh, speaking of that, Alaska doesn’t have the death penalty. Why not? Is she soft on crime. I think so.

Oh, and Alaska has an explicit right to privacy in its constitution which has been applied to private employers. Why didn’t she change this?

Posted by: S.cotus | Oct 2, 2008 11:21:53 AM

Well, Anon, since a state has never actually executed anyone for child rape AND since few states other than Texas regularly execute anyone even for mass murders, I am not sure that experimenting with the death penalty on the books actually means killing anyone. Indeed, consider New Jersey, which experimented with the death penalty for 25 years and never killed anyone.

So, if we are going to be accurate, Anon, it is NOT true that experimenting with the death penalty means killing people. Indeed, that is part of my point and concern with the Kennedy ruling. If the Supreme Court were REALLY worried about people being killed, it ought to be much more focused on the death penalty deterrence literature and even the possibility that the death penalty for child rape might even save some children from being raped and then being accidentally killed.

Posted by: Doug B. | Oct 2, 2008 11:22:34 AM

It is possible to make a principled argument for the death penalty and for state-level experimentation with its use, but the empirical literature is not it. The Dononhue and Wolfers piece is the final word, for at least the next fifty or sixty years (until we have more data that is, and even then we likely won't have enough variation). The deterrent effect of the death penalty is a known unknown: there is almost universal acceptance among economists and legal empiricists that we simply can't estimate any effect. Thus neither side can make an empirical claim. Proponents cannot claim it deters, and opponents cannot claim it does not deter or is even iatrogenic. The data lack enough variation; the results are too sensitive to minor changes in model choice. If you were to track down 1000 economists who had never heard of this debate, hand them the pro-deterrence papers and DW's paper, I'm willing to bet at least 997 of them would agree with DW that the deterrent effect is simply impossible to estimate.

The problem will be even more pronounced for child rape, since the number of cases will be even smaller, thus any effect even harder to filter from the massive amount of noise.

Posted by: John | Oct 2, 2008 12:02:22 PM

I don't normally jump into death penalty debates because it's not an issue that I feel strongly about. I just want to make one comment to John above, however. Even if it is true that there is almost universal acceptance that one cannot estimate any deterrent effect of the death penalty, what is immeasurable is not therefore irrelevant. Indeed, there wasn't direct empirical evidence for Darwin's theory of evolution well into the 20th Century; Darwin himself never saw a species evolve. Yet that theory had and tremendous impact on the world.

If death penalty opponents have their way, there never will be any direct empirical evidence of the deterrent effect of the death penalty because there will be no death penalty.

Posted by: Daniel | Oct 2, 2008 1:22:07 PM

"The Dononhue and Wolfers piece is the final word..."

The original authors' responses are out in working paper form and will be published (in peer-reviewed journals, unlike D&W) in the not too distant future. They find across the board that taking into account D&W's criticisms, the deterrent effect is still there.

Posted by: Kent Scheidegger | Oct 2, 2008 2:10:24 PM

Oh come on folks, there won’t be a final word on any of this. Ever.

People will find what they want. The beauty of law and politics is that we can always change the bars.

Crime rates too high? Redefine crimes. Stop enforcing things. Undercharge. Prosecute things civilly? Focus on rehabilitation and community involvement.
Crime rates too low? Criminalize some more things. Overcharge. Crack down on the politically unpopular?

There really isn’t a way to pick up all the nuance of the criminal justice system in a statistic. By its nature, the system is open. In the US even people that don’t work for the government are allowed to decide guilt or innocence. (Except if they are Arab. In that case, the executive takes the position that only government bureaucrats can decide whether to put them in jail for life.) Statistics can’t pick up on jury deliberations, the strengths and presentation of cases in a criminal trial, or even charging decisions by prosecutors.

But, whatever the case, if you want to make your political point, you can always find someone to peer review it.

Posted by: S.cotus | Oct 2, 2008 2:29:12 PM

Like Daniel, I rarely wade into death penalty debates because of the emotional responses they generate. The only reason I did here is because Doug is one of the few public voices on sentencing who is consistently thoughtful, and as an empirical economist I wanted to draw his attention to the difficulties of relying on the death penalty empirical literature.

The peer review argument is a strawman. DW has been debated so far and wide that it has been effectively peer reviewed. And lots of bad stuff still makes it through peer review. So that isn't a rebuttal. Outside of the handful of economists who have purported to find a deterrent effect and now find themselves defending an empirical position (always problematic for empiricists, finding oneself wedded to a conclusion), almost all economists and other empiricists either do or would recognize that DW's critique--the data are too unstable--is valid. I've seen some of the rebuttals, including Rubin and Dezhbakhsh, and they are completely non-responsive on many of the major points (and I say that as someone who tends to take a tough-on-crime view, so my ideological priors rest with them).

Posted by: John | Oct 2, 2008 2:42:32 PM

Please disregard my comments to John. Rereading his original post I see I misunderstood what he was saying and I rebutted an argument he is, in fact, not making. His remarks are perfectly clear, I just misread.

I agree with his position regarding the use of the data, assuming what he says about it is true.

BTW, I avoid death penalty debates not because they are emotional but because the issue is unimportant to me.


Posted by: Daniel | Oct 2, 2008 4:00:34 PM

federalist said: "I think what the Gov. meant was that there is some core privacy right, but that the states could, through their own laws, expand it."

Actually, I think what the Gov. meant was that there is some core privacy right, but that the states could, through their own laws, contract or restrict it in favor of maintaining a "culture of life." Thus, she can believe in both a federal constituional right to privacy as Roe discussed it and the State's right to ban abortion.

The fact that this is nonsence does not seem to enter into it.

Prof - Kind of a cop out to call for the State's right to kill people but to maintain that you're not calling for the State to actually kill anyone. At some point the rubber is going to meet the road.

Posted by: Anon | Oct 2, 2008 4:50:48 PM

I have never heard any thoughts or discussions about what future impact execution may have on living child victims.

Many people live their lives without a second thought after having killed in battle, or having an abortion.

Many people have later-in-life recriminations - no matter how much assurance they had that it was 'justified'.

Perhaps this is one 'cure' that is worse than the disease...

Posted by: Anon | Oct 9, 2008 12:29:13 PM

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