September 22, 2008
What will (or should) SCOTUS do on the Kennedy rehearing petition?
Among lots of good new stuff at StandDown Texas Project is this interesting op-ed from Peter Verniero, who served as a New Jersey Supreme Court justice and state attorney general, on the Kennedy child rape case. The piece is headlined "To maintain its integrity, the court must own up," and here is how it starts and ends:
There is something almost sacrosanct about recitations of law contained in decisions of the U.S. Supreme Court. Lower-court judges, attorneys, law professors and everyday citizens depend on those statements in myriad ways even when disagreeing with the court's conclusions. If for no other reason than that, the court should reconsider and correct an opinion it filed at the end of its last term, Kennedy vs. Louisiana....
[H]ow one feels about the death penalty is irrelevant to whether the high court should reconsider its Louisiana decision. At stake is not a policy debate but the reputation of the judiciary. If court decisions are to retain legitimacy in a free society, they must be based on accurate readings of the law. From that perspective, unless or until it is corrected, the Louisiana opinion will suffer under a cloud of doubt.... Whether the court ultimately reverses its decision will depend on the court's evaluation of a correct survey of the law. Until that happens, we will be left wondering whether its divided Louisiana ruling is entitled to respect based on an accurate review of the law or merely because the court decreed it to be so.
It is unclear whether the author of this op-ed would be content if the Justices just amend the Kennedy opinion by adding a footnote discussing the (lack of) impact of military law on the analysis. I suspect that the adding of such a footnote through an amended opinion is all that the Supreme Court will ultimately do in response to Louisiana's rehearing position. And perhaps this is all the Court should do, since the flaw of the decision does not rest in its failure to discuss military child rape law, but rather in five Justices' clear desire to use constitutional doctrine to block any expansion of the death penalty in American states.
In short, as I have explained in prior posts noted below, I consider the Kennedy decision to be misguided as a matter of constitutional law and policy. But, unless someone in the Kennedy majority is prepared to reconsider more fundamental aspect of this recent ruling, I doubt that the military law kerfuffle should (or will) change the outcome.
So, dear readers, after I have here reiterated my Kennedy views and predictions, what do you think SCOTUS will (or should) do in response to Louisiana's rehearing position?
Some related posts the Kennedy ruling and a possible rehearing:
Deep thoughts on virtue and punishment
Anyone interested in deep and different views in the never-ending punishment theory debate ought to check out this new paper on SSRN. The paper by Ekow Yankah is titled "Virtue's Domain," and here is the abstract:
If at the end of your life you were told you had fulfilled all your moral duties, you would be proud. If you were told you only fulfilled your moral duties, you would be less proud. We all aim to do more than fulfill our duties. We wish to have been more generous than obligatory, more patient, more wise... in short, we wish to be virtuous.
This insight, that there is more to moral well-being than either our moral duties or good consequences, is central to modern virtue ethics. In its important neo-Aristotelian strain, virtue ethics advocates that success in life is also determined by living an ethically rich life, showing sound practical reasoning and exhibiting the human virtues.
Virtue ethics is also importantly influencing jurisprudence. Understanding the role virtue plays in law reveals the way in which our criminal punishment regimes are based on a view of poor underlying character. When these insights are embedded in law, however, things go horribly awry. Because virtue theories premise blame, in part, on a failing of character within the offender, they alter our view of the offender and create a permanent criminal caste. With our compassion blunted, our ugliest prejudices flourish and we fail to notice that our criminal law has become a powerful tool of racial and class suppression. Equally disturbing, even the most sophisticated character theories cannot be reconciled with our commitment to liberalism, particularly with the central place of autonomy within liberalism.
This article argues that only by returning to Kantian and Hegelian Act theories of punishment can we dissolve the view of offenders as permanently tainted and stay true to our liberal commitments.
Evidence that judges will follow sensible sentencing guidelines
Though I do not know all the particulars of the state sentencing guidelines in Pennsylvania, I do know that this local story highlights that sentencing judges will generally follow sentencing guidelines that provide sensible sentencing advice. The story is headlined "Study: Judges usually comply," and here are excerpts:
Judges in Montgomery County appear to be conforming to state sentencing guidelines and rarely sentence convicted criminals above or below those guidelines, according to a recent study.
Of the 5,537 county sentences reviewed by the Pennsylvania Commission on Sentencing in 2007, 95 percent were within the guidelines recommended by state legislators. Only 5 percent of the sentences doled out to criminals by county judges in 2007 were outside the guidelines, either above or below state recommendations.
District Attorney Risa Vetri Ferman believes the statistics reflect that the guidelines are accomplishing their purpose in the county. "It shows that our judges take sentencing very seriously and they scrupulously follow the law," Ferman said. "The lion's share of the cases fall into the standard range of the sentencing guidelines because that's where they belong."...
Statewide, overall conformity to the guidelines was high during 2007. About 91 percent of the 97,360 sentences imposed by judges in all 67 counties during 2007 were within the recommended guidelines.
September 21, 2008
Does money have no place in any life/death debate?
Do readers think a respectable newspaper would boldly assert in an editorial that money has no place in the health care debate? Or in the debate over the war in Iraq? I certainly would view such assertions to be misguided, which is why I find foolish this local editorial, headlined "Our view: Money has no place in death penalty debate." Here are excerpts:
Since capital punishment was re-instated in Indiana in 1977, 94 men and women have been sentenced to death. Of those, 19 convicted murderers have been executed. Five more committed suicide, died of natural causes or were killed by other prisoners. Others saw their sentences commuted through the appeals process. Fourteen more await their punishment on Death Row, every facet of each and every case weighed heavily prior to sentencing.
The same diligence must be given in the upcoming Jay County trials of five men and women accused of luring Shawn Buckner to a house where he was brutally beaten before being stabbed in a rural cornfield and later buried in a shallow grave near Dunkirk.
Jay County Prosecutor Robert Clamme said earlier this week -- just eight days after the crime -- that he did not believe he would seek the death penalty. Clamme declined to discuss his reasoning, but local prosecutors point toward the significant cost involved in death penalty cases as the most likely answer.
There are plenty of legitimate arguments both in favor of and against capital punishment that get at the real heart of the issue, that frankly, makes the cost issue ridiculous by comparison. We're talking about the taking of a human life, not whether or not to purchase a new courthouse. To bring money into the equation only adds to the argument that capital punishment is unjust....
Surely, this was not what legislators intended when the death penalty was re-instated, or what the family of Shawn Buckner deserves. Whether the county in which he lived and died is fiscally sound shouldn't play into the punishment the courts decide his attackers deserve.
Jay County is just a dot on the map in greater Indiana, but the issue has state-wide ramifications. And as fortunate as East Central Indiana is with a low murder rate, surely this won't be the only time the issue is called into question, especially as property tax freezes deplete local resources.
It's time for discussion on a state-wide level, with a state-wide solution. Buckner was just one victim, but his life was sacred. His death shouldn't be diminished by finances.
I find ridiculous anyone who advocates a state-wide public policy position to claim that cost is an entirely inappropriate consideration in a debate. Put simply, it costs millions of dollars for a state to weigh heavily "every facet of each and every case," and thus the death penalty is always going to be an expensive enterprise. Unless and until taxpayers promise never to complain about tax increases, I find it badly misguided and quite dangerous to assert that cost issues are off the table in a debate over capital punishment.
Some related posts:
"The Candidates and the Court"
The title of this post is the headline of this editorial today in the New York Times. Here are snippets:
Among the many issues voters need to consider in this campaign is this vital fact: The next president is likely to appoint several Supreme Court justices. Those choices will determine the future of the law, and of some of Americans’ most cherished rights.
John McCain and Barack Obama have made it clear that they would pick very different kinds of justices. The results could be particularly dramatic under Mr. McCain, who is likely to complete President Bush’s campaign to make the court an aggressive right-wing force....
Mr. McCain has promised the right wing of the Republican Party that he would put only archconservatives on the Supreme Court. Even moderate conservatives like Anthony Kennedy, the court’s current swing justice, would not have a chance....
Mr. Obama has put distance between himself and legal liberals on issues like the death penalty for child rapists and the constitutionality of gun control. As president, Mr. Obama would probably be more inclined to appoint centrist liberals, like Justice Stephen Breyer, than all-out liberals, like William Brennan or Thurgood Marshall.
Though I fully agree more that the 2008 election is very important for the future of the Supreme Court, the spin is in with this Times editorial. As constitutional lawyers know, Justice Breyer has typically voted like Justices Brennan and Marshall on the death penalty. And, I like to think a true "legal liberal" committed to individual rights would have voted with the purportedly "conservative" Second Amendment decision in Heller. And, of course, these labels lack any real content when we look at rulings like Blakely and Booker and Rita and Kimbrough.
Of course, I do not really expect the New York Times editorial page to be as legally accurate as it is politically astute. And the editorial certainly does set out the kinds of SCOTUS political talking points we may see if these issues ever become the focal point of serious discussion on the campaign trail.
UPDATE: Orin Kerr has this interesting new post at Volokh responding to the NY Times piece asking "Would Obama Nominate A Breyer or a Brennan?".