Sentencing Law and Policy

In Alabama, the Kennedy case did not end talk of the death penalty for child rape

Apparently, it takes a while for a SCOTUS decision about constitutional limits on the death penalty to make its way down to Alabama.  That conclusion is the only way I can fully make sense of this local Alabama story, headlined "Capital Punishment for Certain Pedophiles?".  Here are excerpts from the piece:

Pedophiles who rape young children could face the death penalty in Alabama…if one state lawmaker gets his way.  State Representative Steve Hurst of Munford in Talladega County is proposing a new law that would allow a judge to use capital punishment if someone older than 21 is convicted of raping a child 6 years old or younger.

The death penalty is a punishment that — so far — has been reserved only for murderers. Should child molesters now be included?

With the growing number of child sex predators, Hurst says capital punishment is an appropriate sentence for adult rapists older than 21 who violate children 6 years old or younger. “You take a child who’s completely helpless. They have no way to defend themselves. And someone does something of this nature to them, you have literally destroyed that child for the rest of their life,“ says Hurst....

Introducing capital punishment for some might not be a fix all, but Hurst says, it’s at least a start. “You’ve got to keep knocking at the door, or you can’t never get in.“ Hurst is still waiting to schedule this bill’s first hearing before the Alabama Legislature.

Of course, last summer in the Kennedy case, the Supreme Court declared unconstitutional a Louisiana law making child rape a death-eligible crime.  This Alabama story does not even mention the Kennedy case, and I cannot help but wonder if Representative Hurst and his staff realize that the Justices have already declared unconstitutional the bill he has proposed.  

Then again, maybe Representative Hurst knows all about the Kennedy case and seeks to be at the forefront of a constitutional vanguard here.  In the absence of a constitutional amendment, only way for capital child rape to become constitutional would be through a new evolving national consensus in favor of such a punishment.  If Representative Hurst can get his bill passed in Alabama and then encourage a few dozen other states to pass similar bills, he might lay a foundation for the Supreme Court to revise its interpretation of the "evolving standards of decency" that serve as its jurisprudential touchstone for the Eighth Amendment.

Yale LJ Pocket Part piece on Kennedy rehearing denial

I am intrigued to see that the Yale Law Journal Pocket Part already has this new piece on-line concerning the Supreme Court's denial of rehearing in the Kennedy child rape case.  The piece is by Bidish Sarma and is titled "Still in Search of a Unifying Principle: What Kennedy v. Louisiana and the Supreme Court’s Denial of the State’s Petition for Rehearing Signal for the Future."  Here is an excerpt from the piece's introduction: "

The State of Louisiana claimed that a recent change in military law invalidated the Court’s finding [in Kennedy] of a national consensus.  It attempted to capitalize upon fresh media coverage and widespread confusion about the facts by filing a petition for rehearing with the Supreme Court.  On October 1, 2008, the Court denied the request for a rehearing.  This piece briefly explores: (I) the basis of the Court’s decision to reject the request for rehearing; and (II) the Kennedy decision’s implications for the Eighth Amendment’s future.

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. 

SCOTUS plays foot(note)sie as it denies rehearing in Kennedy

As I had expected (and had predicted here and elsewhere), the Supreme Court denied Louisiana petition for rehearing in the Kennedy child rape case.  Over at Sex Crimes, Corey has this effective post covering this ruling and the footnotes added to the main opinion and the dissent to address the previously overlooked military law that prompted the rehearing petition.  In addition, Justices Kennedy and Scalia wrote short opinions about the rehearing decision.

I may comment more on this decision after I get a chance to consume the specifics and do some posting on the other action from the SCOTUS order list today.  Tony Mauro has this report on the ruling at The BLT, and SCOTUSblog more on all the action from One First Street today.

Louisiana files final Kennedy rehearing petition brief

As detailed here at SCOTUSblog, Louisiana today filed its final brief before the Supreme Court decides whether to rehear the Kennedy child rape case.  This last brief is available at this link, and here is part of Lyle Denniston's summary:

The new brief went to considerable lengths to try to persuade the Court that the fact that an existing federal law on death penalty for child rape was only a military law, binding in that sector alone, should not make a difference in judging whether it contributes to a “national consensus” in favor of the penalty....

The brief, taking note of the fact that the Court, in judging other crimes and their eligibility for the death penalty, had cited foreign law for guidance, argued that “the failure to consider domestic military law would a fortiori call into question any reliance on the laws and practices of foreign jurisdictions.”

Louisiana also sought to inject a bit of politics into its argument that there is a building consensus in favor of the death sentence for child rape.  It included in its appendices statements from presidential candidates John McCain and Barack Obama criticizing the ruling in Kennedy v. Louisiana.  Also included was a July 10 letter, written to members of the Court, by 85 members of Congress urging the Court to reconsider the decision because of the omission of the military law on the subject.

I continue to predict that the Supreme Court will ultimately deal with all these issues through an amended opinion that adds discussion of military law, but does not change the sum or substance of the Kennedy ruling.  But, then again, who knows what mischief might lie in the hearts of Justices in Kennedy.

Some related posts the Kennedy ruling and a possible rehearing:

• What will (or should) SCOTUS do on the Kennedy rehearing petition?
• Could all the mistakes in Kennedy be corrected?
• Louisiana seeks rehearing in Kennedy child rape case (with some notable lawyers helping out)
• Additional briefing in Kennedy child rape rehearing debate
• Will the Supreme Court rehear Kennedy v. Louisiana?
• Washington Post editorial supports rehearing in Kennedy child rape case
• The international dogs that did not bark in Kennedy
• Ineffective assistance (by prosecutors) in Kennedy child rape case?
• Some first-cut reactions to Justice Kennedy's work in Kennedy
• Culture of life trumps democracy and state experimentation in Kennedy
• Will (and can) "outraged" politicians really do anything about Kennedy?
• Counting to five in the Kennedy rehearing debate
• Add Prof. Tribe to those urging rehearing in Kennedy
• Deep thoughts about Kennedy while rehearing motion pending

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:

• Could all the mistakes in Kennedy be corrected?
• Louisiana seeks rehearing in Kennedy child rape case (with some notable lawyers helping out)
• Additional briefing in Kennedy child rape rehearing debate
• Will the Supreme Court rehear Kennedy v. Louisiana?
• Washington Post editorial supports rehearing in Kennedy child rape case
• The international dogs that did not bark in Kennedy
• Ineffective assistance (by prosecutors) in Kennedy child rape case?
• Some first-cut reactions to Justice Kennedy's work in Kennedy
• Culture of life trumps democracy and state experimentation in Kennedy
• Will (and can) "outraged" politicians really do anything about Kennedy?
• Counting to five in the Kennedy rehearing debate
• Add Prof. Tribe to those urging rehearing in Kennedy
• Deep thoughts about Kennedy while rehearing motion pending

Deep thoughts about Kennedy while rehearing motion pending

Among many cool aspects of the pending SCOTUS rehearing petition in the Kennedy child rape case is the possibility that the Justices might read some new scholarship about their work in Kennedy while considering whether to do a do-over.  Just up on SSRN, for example, is this new piece from Professor J. Richard Broughton, titled "Kennedy, the Fall, and the Tail of Minos."  Here is the abstract:

In Dante's Inferno, the damned appeared before Minos, who judged the gravity of their sins and assigned their souls to their respective circles of Hell by wrapping his tail around his body. In this paper, I examine whether, in light of its decision in Kennedy v. Louisiana and its methodology for reviewing categorical exemptions from the death penalty, the Supreme Court has problematically assumed for itself the role of a kind of contemporary constitutional Minos, at least in the realm of capital punishment.

First, I argue, Kennedy is a case about comparative resulting harms among violent crimes.  The Kennedy dissent should have more robustly attacked the Court's categorical exemption methodology, which undervalues legitimate penological justifications for capital punishment and ultimately constitutionalizes the Court's subjective assessments of culpability and harm, allowing the Court to dictate offense seriousness, public morality, and political acceptability of the death penalty.  Second, the Court's attempt to limit its holding is illusory because Kennedy's loose rhetoric and underdeveloped harm theory could jeopardize the constitutionality of any statute that permits the death penalty for a non-homicide offense, including crimes against the state, and even unintentional murders that may not satisfy the Court's own sensibilities about resulting harm.  Finally, Kennedy's Minos-like approach to assessing the gravity of offenses and to imposing its own moral judgment demonstrates that there remains both relevance and legitimacy in the structural debate over the scope and exercise of judicial power, especially where that power undermines the community's reasoned efforts to cope with violent crime.

Additional briefing in Kennedy child rape rehearing debate

Over at SCOTUSblog, Lyle Denniston in this post summarizes the new briefs filed today in the Kennedy child rape case.  The post, which is titled "Court urged to hold fast against death for child rape" and includes links to the new filings, starts this way:

Lawyers for a death-row inmate in Louisiana, arguing that military law is beside the point when deciding the constitutionality of criminal sentences for civilians, urged the Supreme Court on Wednesday to leave intact its recent decision nullifying the death penalty for the crime of raping a child. Had the Court known at the time of its ruling June 25 that there was a provision in military law on that issue (it apparently did not), that might have deserved mention, but perhaps only a footnote, the new brief filed for inmate Patrick Kennedy said in the case of Kennedy v. Louisiana.

Is SCOTUS really thinking about rehearing Kennedy child rape case?

As detailed in this post at SCOTUSblog by Lyle Denniston, the Supreme Court today has asked for some more briefing concerning the motion for rehearing in the Kennedy child rape case.  Here are details from that posts:

The Supreme Court on Monday called for new legal briefs on possible rehearing — and, maybe, revision — of its ruling striking down the death penalty for the crime of child rape. In an order in Kennedy v. Louisiana (found here), the Court sought briefs from lawyers for both sides in the case, as well as from the federal government. The new briefing in 07-343 is to be completed by Sept. 24 — in advance of the Court’s first Conference of the new Term, on Monday, Sept. 29.

The briefs are to discuss two issues, according to the order: first, whether to grant rehearing of the June 25 decision, and second, what action — if any — the Court should take if it does reopen the case. Here is the way the Court phrased its inquiries: “whether rehearing should be granted” and “the merits of the issue raised in the petition for rehearing” filed by the state of Louisiana on July 21....

In Monday’s order, the Justices sought a supplemental brief of up to 4,500 words from attorneys for Patrick Kennedy, the death-row inmate at the center of the case, with that brief due on Sept. 17. The U.S. Solicitor General’s office is to file a brief of up to 2,500 words, due at the same time, on the federal government’s views. The state of Louisiana is to file a brief of up to 4,500 words, dealing not only with its plea for rehearing, but also “the merits of the issue raised in the petition for rehearing.” That final brief is due Sept. 24.

I presume that, even with this order, amicus briefs are still not permitted in support (or opposition) to the rehearing petition.  Still, this is an interesting and exciting development, and I am very much looking forward to seeing what these supplemental briefs look like (and what else gets said about the case in the media and in the blogosphere).

Some related recent posts on a possible Kennedy rehearing:

• Could all the mistakes in Kennedy be corrected?
• Louisiana seeks rehearing in Kennedy child rape case (with some notable lawyers helping out)
• Will the Supreme Court Rehear Kennedy v. Louisiana?
• Washington Post editorial supports rehearing in Kennedy child rape case
• The international dogs that did not bark in Kennedy
• Ineffective assistance (by prosecutors) in Kennedy child rape case?
• Some first-cut reactions to Justice Kennedy's work in Kennedy
• Culture of life trumps democracy and state experimentation in Kennedy
• Will (and can) "outraged" politicians really do anything about Kennedy?
• Counting to five in the Kennedy rehearing debate
• Add Prof. Tribe to those urging rehearing in Kennedy

UPDATE: The Washington Post reports on this new development in this artice.

Add Prof. Tribe to those urging rehearing in Kennedy

Though I'm on vacation and really enjoying the work of the Guest bloggers, I had a bit of on-line time this afternoon and now I cannot resist spotlighting this morning's Wall Street Journal op-ed by HLS Professor Laurence Tribe's headlined "The Supreme Court Is Wrong On the Death Penalty."  Here are snippets:

Defenders of the court's decision in Kennedy v. Louisiana would have it ignore that embarrassing wrinkle by treating the military as a parallel universe that simply does not intersect civilian justice on the plane of constitutional principle.  But a court searching for universal principles of justice in the name of the Eighth Amendment would be hard pressed to accept that view of the military/civilian distinction.  Particularly when the court's division tracks the usual liberal/conservative divide, its credibility depends on both candor and correctness when it comes to the factual predicates of its rulings....

If a legislature were to exempt the killers of gay men or lesbians from capital punishment, even dedicated death penalty opponents should cry foul in the Constitution's name.  So too, should they cry foul when the judiciary holds the torturers or violent rapists of young children to be constitutionally exempt from the death penalty imposed by a legislature judicially permitted to apply that penalty to cop killers and murderers for hire.  In doing so, the court is imposing a dubious limit on the ability of a representative government to enforce its own, entirely plausible, sense of which crimes deserve the most severe punishment.

To be sure, holding the line at murder and treason gives the judiciary a bright line that blurs once one says a legislature may include other offenses in its catalogue of what it deems the most heinous of all crimes. But the same may be said of virtually any bright line.  Placing ease of judicial administration above respect for democracy and for principles of equal justice under law is inexcusable.

The Eighth Amendment's cruel and unusual punishment clause should not be construed in a manner that puts it on a collision course with the 14th Amendment's equal protection clause. The Supreme Court would do well to take that overriding consideration into account as it decides whether to revisit its seriously misinformed as well as morally misguided ruling.

Though Tribe seems more troubled by the result in Kennedy than by the Court's factual errors (as am I), adding his voice to the call for rehearing in Kennedy strike me as quite important.  So, to review, we now have the state of Louisiana (represented by prominent law professors from both sides of the political aisle), the US Government, the Washington Post editorial page, and Tribe all asserting that the Justices ought to take up the Kennedy case again. (Also, though not directly addressing the rehearing issue, both major Presidential candidates and a number of other prominent politicians also have suggested the Justices messed up In Kennedy). 

The hamonic consensus calling for rehearing in Kennedy reinforce a point I have made from the outset of the post-Kennedy debate: the Supreme Court's legitimacy, and not just the outcome in one high-profile case, is at stake in how it handles the rehearing question in Kennedy.

Some related recent posts:

• Could all the mistakes in Kennedy be corrected?
• Louisiana seeks rehearing in Kennedy child rape case (with some notable lawyers helping out)
• Will the Supreme Court Rehear Kennedy v. Louisiana?
• Washington Post editorial supports rehearing in Kennedy child rape case
• The international dogs that did not bark in Kennedy
• Ineffective assistance (by prosecutors) in Kennedy child rape case?
• Some first-cut reactions to Justice Kennedy's work in Kennedy
• Culture of life trumps democracy and state experimentation in Kennedy
• Will (and can) "outraged" politicians really do anything about Kennedy?
• Counting to five in the Kennedy rehearing debate

Counting to five in the Kennedy rehearing debate

The Kennedy rehearing petition is a very interesting read (basics here), especially if one keeps in mind the likelihood — or should I say unlikelihood — that five Justices will vote for rehearing. Here are a few completely uninformed speculations about the challenges I think Louisiana faces in getting another bite at the Kennedy apple.

First, I think it is unlikely that Justice Stevens or the other three more liberal Justices will be eager to take up this case again. Justice Stevens has expressed his view that he now thinks the death penalty is unconstitutional in all cases, and I surmise that Justices Breyer, Ginsburg and Souter may all be moving in that direction.

Second, though I think Justice Kennedy may be concerned and embarrassed about having his name on a prominent opinion that involves a notable mistake, I am not sure he will want to return a spotlight on these matters.  Notably, circuit courts frequently make amendments, without having reargument, to important opinions when petitions for rehearing spotlight flaws. I do not know if the Supreme Court ever has or ever would take this approach, but it might be Justice Kennedy's preference.

Third, I am not sure any of the dissenters in Kennedy really want to return to this battle.  They may know that the outcome is unlikely to change, and the Chief and/or other might be disinclined to have a lot of child rape sound and fury signifying nothing.  Of course, if the Chief or others think the integrity of the Court is at issue, they may urge and vote for rehearing nonetheless.

Again, these are all rank speculations, and I'd be interested to hear others' views and thoughts.

Louisiana seeks rehearing in Kennedy child rape case (with some notable lawyers helping out)

As detailed in this SCOTUSblog post, "Louisiana on Monday asked the Supreme Court to reconsider its ruling a month ago striking down the death penalty for the crime of child rape."  Here are more particulars:

The rehearing petition, citing an omission in the Court’s opinion of any mention of a federal law on that issue, was filed late Monday afternoon. The petition in Kennedy v. Louisiana (07-343) can be found here.

Noting that the Court “almost never grants petitions for rehearing,” the state’s filing said this was “the rare exception.” It cited an 1875 ruling (Ambler v. Whipple), saying that an omission “material to the decision of the case” makes “a strong appeal for reargument.”

The petition said that either the rehearing should be granted, or the Court should “first seek the views” of the U.S. Solicitor General. Earlier, after the discovery of the omitted statute from the Court’s opinion, the Solicitor General’s office said that, if a rehearing plea were filed, it would examine it and “consider what steps are appropriate.”

Under the Court’s rules, a rehearing petition is not subject to oral argument and will not be granted except by a majority of the Court “at the instance of a Justice who concurred in the judgment or decision.” The other side in a case is not allowed to file a response, unless the Court specifically asks it to do so.  The Court’s rules add that, unless there are “extraordinary circumstances,” rehearing will not be granted unless a response is first requested.

I found particularly notable two of the names on the rehearing petition: Georgetown University Law Professors Viet Dinh and Neal Katyal.  I think it is fair to describe Professor Dinh as a prominent conservative legal star and Professor Katyal as a prominent liberal legal star.  I also found notable the final footnote in the rehearing petition, which indicates that the Supreme Court has granted post-ruling rehearing petitions in at least 22 prior cases.

I am pleased that Louisiana and Governor Jindal has now put the ball back into the Supremes' Court.  I still suspect that the five Justices in the Kennedy majority won't want to open this case back up, but I am glad that they were directly asked.

Some related recent posts:

• Could all the mistakes in Kennedy be corrected?
• Washington Post editorial supports rehearing in Kennedy child rape case
• The international dogs that did not bark in Kennedy
• A Reagan era irony in Senator McCain's recent judge-bashing
• Ineffective assistance (by prosecutors) in Kennedy child rape case?
• Some first-cut reactions to Justice Kennedy's work in Kennedy
• Culture of life trumps democracy and state experimentation in Kennedy
• Will (and can) "outraged" politicians really do anything about Kennedy?

UPDATE:  Adam Liptak has this effective New York Times article covering the filing.

Is LA Gov. Jindal about to flip-flop on capital child rape?

As reported here at SCOTUSblog, tomorrow "is the deadline to seek rehearing in Kennedy v. Louisiana (07-343), though there has been no indication the state of Louisiana will seek rehearing...."  I will be very disappointed if Louisiana does not petition for rehearing, especially given that, as detailed here, Governor Bobby Jindal has stated in this official press release that the Supreme Court "got this case wrong, plain and simple" and that he "will do everything [he] can to see that this decision does not stand."  I am hoping that Governor Jindal will stay true to his word and have his state at least ask the Justices for rehearing in Kennedy.

I am not sure that the Justices will or even should grant rehearing in Kennedy, but I am sure that there are lots of justifications for Louisiana filing a rehearing petition.  The Washington Post stressed in an editorial discussed here why the error the Kennedy decision made about federal law alone justifies rehearing:

The Supreme Court's legitimacy depends not only on the substance of its rulings but also on the quality of its deliberations. That's why we think the court needs to reopen this case -- even though we supported its decision.... [T]his is an opportunity for the court to show a little judicial humility. Before the court declares its final view on national opinion about the death penalty, it should accurately assess the view of the national legislature.

Moreover, as some commentary has highlighted, both major candidates for President disagreed with the Kennedy court's ruling, and recent poll data (discussed here at The Volokh Conspiracy) indicate that a significant majority of Americans support child rape being a death eligible crime.  In other words, the assertion that there is a national consensus againt capital child rape looks much worse now than it did just last month. 

Whether or not there is a reasonable chance that the Supreme Court grants rehearing and/or reconsiders the merits of its decision, I think it is very important for Governor Jindal to follow up his blustery court-bashing with an actual legal filing.  As I have suggested in this prior post, it would be sad and telling if Gov. Jindal's comments were only intended to score anti-SCOTUS political points and he does not have enough conviction in his own assertions to bring his complaints directly to the Court.  (Notably, Gov. Jindal's slogan on his official website is "I'm asking you to once again believe in Louisiana."  I will never again believe in him if he does not have his state petition for rehearing in Kennedy.)

Some related recent posts:

• Could all the mistakes in Kennedy be corrected?
• Washington Post editorial supports rehearing in Kennedy child rape case
• Is Louisiana working on its Kennedy rehearing petition? Will Gov. Jindal stay true to his word?
• The international dogs that did not bark in Kennedy
• A Reagan era irony in Senator McCain's recent judge-bashing
• Ineffective assistance (by prosecutors) in Kennedy child rape case?
• Some first-cut reactions to Justice Kennedy's work in Kennedy
• Culture of life trumps democracy and state experimentation in Kennedy
• Will (and can) "outraged" politicians really do anything about Kennedy?

Cross-posted at Prawfs

UPDATE:  No flip-flops; as detailed here, Louisiana has now petitioned for rehearing in Kennedy.

Can too many child rapes be a constitutional argument against making this crime death-eligible?

I am intrigued but troubled by the arguments developed by John J. Donohue III and Daniel Schuker over at Balkanization, in this post titled "Dodging the Death Penalty Bullet for Child Rape." The post asserts that Supreme Court's decision in the Kennedy child capital rape case "managed to reach the correct result of saving the state and the country from a major, and almost certainly harmful, expansion in the use of capital punishment."

After discussing the military law error that might be the hook for the state of Louisiana to seek rehearing in Kennedy, this post runs some numbers and makes these interesting assertions:

Coupling [a Department of Justice victim-age] estimate to findings in the 2005 National Crime Victimization Survey implies that roughly 36,500 children under 12 were victims of rape.  By comparison, 16,740 murders took place that year.

If we include both reported and unreported incidents, the annual number of child rapes may thus exceed Justice Kennedy’s estimate by at least a factor of six.  The Court’s decision, consequently, forestalls the costly and ultimately ineffectual legal haggling that would take place over an immense new body of death-eligible cases.

Even if we executed as many child rapists as we did murderers — there were 98 executions in 1999, the most in any year in more than half a century — narrowing down some 36,000 incidents of child rape to the 100 most egregious would prove a taxing and largely ineffective gesture....

Conceivably, the concerns about discrimination, arbitrariness, and the waste of scarce judicial resources could be overcome if the death penalty lessened the incidence of child rape, but there is no reason to believe that capital punishment will be any more successful in reducing child rapes than it is in deterring murder....

Untold resources are spent deciding which vile crimes merit the death penalty, when equally serious crimes avoid this sanction.  A wiser choice could be to invest those resources in providing aid to victims and working to prevent repetitions of these awful crimes.

Having avoided the legal mayhem of adding a new realm of death penalty prosecutions, the country can now focus its efforts on solving, instead of creating, vexing social problems.  The Court’s ruling should encourage legislators to take serious steps to address the abuse of children in all its many tragic and damaging forms, rather than to grandstand with death penalty laws whose implementation will certainly be highly unusual if not cruel.

Though there are a lot of logical steps in this argument that might be subject to debate, I have a hard time at the outset understanding if the authors are really claiming that the Kennedy decision reached a "the correct result" as a constitutional matter or just a proper policy outcome.  The final sentence of this long post almost concedes that it may not be cruel to execute certain child rapists.  If the authors come to that conclusion, how exactly they defendant the constitutional conclusion that the policy choice by the Louisiana legislature is precluded by an amendment that only prohibits cruel and unusual punishments?  (Notable, some state constitutions prohibit cruel or unusual punishments, but the Eighth Amendment uses the conjunctive.)

As a voter and a taxpayer, I share the authors' instinct as a policy matter that it is a poor use of limited state resources to apply the death penalty to child rape rather than to use these funds for other crime-prevention purposes. But, of course, the same argument can (and likely should) be made against almost all long prison sentences and many other aspects of the modern criminal justice system.  I do not think most folks (even most anti-punishment scholars) seriously contend that the US Supreme Court ought to actively use the Eighth Amendment to regulate the efficacy of how states allocate their crime-fighting dollars.  And yet, apparently when it comes to the death penalty, the authors of this post (and perhaps the Justices in the Kennedy majority) believe this is an appropriate way to apply the Constitution.

I have a lot more criticisms of this post --- e.g., the failure to recognize that all states but Louisiana had limited capital child rape to the smaller population of repeat rapists, the failure to acknowledge that deterrence realities for child rape may be VERY different than for murder, the failure to appreciate that the development of degrees of rape through the death penalty might produce collateral legal benefits (as it has in the context of the history of the death penalty) --- but it is the post's fundamental failure to distinguish (or desire to conflate?) policy arguments and constitutional claims that gets my legal-process goat more than anything else.

The international dogs that did not bark in Kennedy

As we await word on whether Governor Bobby Jindal will keep his word and ensure Louisiana seeks rehearing in the Kennedy child rape case (discussed here), a notable omission in the majority opinion dawned on me.  As everyone surely will recall, when the Supreme Court struck down the death penalty for juve offender in Roper, Justice Kennedy's opinion for the Court devoted numerous pages to international laws and views.  In sharp contrast, the Kennedy opinion says nary a word about international laws and views concerning the death penalty for non-homicide offenses.

This international omission is especially notable given that the Roper opinion suggested that at least some consideration of international laws and views is essential to modern Eighth Amendment analysis: "at least from the time of the Court's decision in Trop, the Court has referred to the laws of other countries and to international authorities as instructive for its interpretation of the Eighth Amendment's prohibition of 'cruel and unusual punishments.'" Roper, slip op. at 21.  But in Kennedy, the exact same group of five Justices that comprised the Roper majority did not even once mention the laws of other countries or international authorities.

Of course, the lack of international discussion in Kennedy can be easily explained: the majority opinion in Kennedy did not reference international laws and views because they would undercut the Court's declaration that only intentional homicides can be death-eligible crimes.  Indeed, according to this Amnesty International April 2008 review, few countries limit the application of the death penalty in the way that Kennedy now constitutionally commands.  (According to AI, China applies the death penalty to 68 crimes, and Iran and Egypt recently executed persons for the crime of adultery.  India, Malaysia, Singapore are just a few of the other countries in which non-homicide crimes other than treason are death-eligible.)

Consequently, it seems that, after Kennedy, we need to refine our understanding of the Supreme Court's the Eighth Amendment's jurisprudence: apparently "the laws of other countries and to international authorities [are] instructive" when interpreting the Eighth Amendment if and only when these laws and authorities support the result that the Court is trying to justify.  Got it?

Some related recent posts:

• Could all the mistakes in Kennedy be corrected?
• Washington Post editorial supports rehearing in Kennedy child rape case
• Is Louisiana working on its Kennedy rehearing petition? Will Gov. Jindal stay true to his word?
• A Reagan era irony in Senator McCain's recent judge-bashing
• Ineffective assistance (by prosecutors) in Kennedy child rape case?
• Some first-cut reactions to Justice Kennedy's work in Kennedy
• Culture of life trumps democracy and state experimentation in Kennedy
• Will (and can) "outraged" politicians really do anything about Kennedy?

Is Louisiana working on its Kennedy rehearing petition? Will Gov. Jindal stay true to his word?

According to SCOTUS Rule 44, a party has 25 days to petition the Supreme Court for rehearing, which means Louisiana now less than two weeks to file a rehearing petition in the Kennedy child rape case.  Notably, according to quotes in this local news account (with my emphasis added), Louisiana's Governor has essentially promised that the state would be filing a rehearing petition:

Governor Bobby Jindal says the U.S. Supreme Court made a factual error when it banned the death penalty as a sentence for those convicted of raping children.... Jindal says the high court "got this case wrong, plain and simple."

"As both the Governor of this great state and as a parent of three children, I continue to be outraged over the Supreme Court’s absurd decision to overturn a death penalty sentence for the brutal rape of a child while citing that ‘the death penalty is not a proportional punishment for the rape of a child;’ and I will do everything I can to see that this decision does not stand," Jindal said.

Interestingly, the Supreme Court's rules provide that the "Clerk will not file any brief for an amicus curiae in support of, or in opposition to, a petition for rehearing."  Thus, politicians and others troubled by the Kennedy ruling cannot formally show support for rehearing through the filing of a brief.

There are lots of other ways, however, that support for rehearing can be demonstrated, and I wonder if Gov. Jindal really will do "everything" he can to see that the Kennedy decision gets reconsidered.  Specifically, Gov. Jindal seems tight with Senator John McCain and might here seek the benefits of the Senator's high profile as the Republican presidential nominee.  Given that Senator McCain has already bashed the Kennedy ruling (details here and here), it would make sense for Gov. Jindal to ask Senator McCain to speak out and actively support Louisiana's rehearing petition from the campaign trail.

Going further, Gov. Jindal could seek to turn the heat up on these issues by reaching out to Senator Barack Obama and asking him to support Louisiana's rehearing petition.  Senator Obama was critical of the Kennedy ruling when it was handed down, and Gov. Jindal could reasonably assert that a "new" kind of politician (especially one with an impressive legal background and a former Constitutional Law professor) should be eager to get the Justices to fix significant errors in important opinions regardless of which political party may be more troubled by the errors.

Further still, Gov. Jindal might also reach out to other members of Congress to urge passage of a resolution encouraging the Justices to rehear Kennedy.  (Such a resolution would be akin to the concurrent resolution passed in July 2004 in the wake of the Blakely decision urging the Justices to swiftly consider Blakely's impact on the federal sentencing system).  After all, the national legislature should not be content to just sit on its hands when the nation's High Court bungles a key point about federal law in an important and high-profile case. 

Of course, I am only scratching the surface here concerning what Louisiana's governor might consider if he is really committed to doing "everything" he can to see that the Kennedy decision does not stand:

• Gov. Jindal might reach out to prominent elected officials in other states to get them to actively express their support for rehearing (as noted here, many claimed to be outraged by the Kennedy decision);
• Gov. Jindal might urge pollsters to do national surveys on public opinion concerning capital child rape to spotlight the majority's mistaken assessment of a national consensus;
• Gov. Jindal might urge the editorial boards of major newspapers around the country to join the Washington Post in urging rehearing in Kennedy;
• Gov. Jindal might urge prominent pundits like Rush Limbaugh and Sean Hannity to use their shows to urge SCOTUS reconsideration.

I seriously doubt that Gov. Jindal really will do "everything [he] can to see that this [Kennedy] decision does not stand."  In fact, I have a nagging feeling that Louisiana may not even file a rehearing petition, perhaps because the state's lawyers will conclude that it would be a futile effort.  Still, on the theory that politicians should not actively bash judicial rulings in public without being willing to also take efforts to raise their concerns directly to the court, I genuinely hope that Gov. Jindal (and Senator McCain) are interested here in more than just anti-SCOTUS political talking points.

Some related recent posts:

• Could all the mistakes in Kennedy be corrected?
• Washington Post editorial supports rehearing in Kennedy child rape case
• A Reagan era irony in Senator McCain's recent judge-bashing
• Ineffective assistance (by prosecutors) in Kennedy child rape case?
• Some first-cut reactions to Justice Kennedy's work in Kennedy
• Culture of life trumps democracy and state experimentation in Kennedy
• Will (and can) "outraged" politicians really do anything about Kennedy?

A (silly?) Kennedy technicality: can prosecutors still pursue capital child rape charges?

Unless the Supreme Court reconsiders its Kennedy ruling (which seems doubtful, despite good cause), it is now unconstitutional (and thus surely unjust) for a state to seek to execute a defendant for the crime of child rape.  But here is a (silly?) technical question in the wake of Kennedy: is it clearly unconstitutional and/or unjust for a state prosecutor to pursue a capital charge against a terrible child rapist? 

Of course, this question only arises in the handful of states that statutorily authorize capital child rape.  But the question may not be merely an academic's fanciful concern for a few reasons:

1.  As the Kennedy opinion indicates, there may be 100 pending capital rape cases in Louisiana (and perhaps a few in some other states).  Does the Kennedy opinion require re-indictments in all these cases, or might a prosecutor opt to continue with these cases under existing state capital law?  One justification for continuing with capital prosecutions could be a genuine hope that an evolving national consensus (or a constitutional amendment) might eventually make execution of terrible child rapists permissible.

2.  Even if a state prosecutor believes a rapist can and never will be executed for a terrible child rape, he or she might still want to seek a death sentence for symbolic or emotional reasons.  Perhaps the victim is eager for the rapist to be condemned to death even if everyone knows the sentence will never be carried out.  Or perhaps a prosecutor believes that securing a death sentence for child rape might facilitate later securing a death sentence against the same defendant for some other capital crime scheduled to be prosecuted at a later time or in another jurisdiction.

3.  And what is a prosecutor concludes that still pursuing capital charges for a terrible child rape makes it easier under state law to secure an life sentence (or to secure a plea agreement to avoid the costs and harms of a trial)?  Indeed, one could even imagine a defense-oriented spin to these issues: perhaps a capital indictment enables a child rape defendant to get extra resources for his defense and/or a death sentence might enable a child rape defendant to be housed under special prison conditions that are preferable to being in the general prison population.

Of course, whether permitted or not, it seems highly unlikely that many (or any) state prosecutors will want to expend time and energy seeking death sentences that likely can never be carried out.  (Then again, prosecutors in California and other states that rarely execute still continue pursuing capital charges even though they must know that a death sentence against any particular murderer is unlikely ever to be carried out.)  But I still find it intriguing, and maybe not totally academic, to think about whether Kennedy precludes only certain types of executions or more broadly preculdes certain types of indictments and prosecutions.

Some related recent posts:

• Could all the mistakes in Kennedy be corrected?
• Washington Post editorial supports rehearing in Kennedy child rape case
• A Reagan era irony in Senator McCain's recent judge-bashing
• Ineffective assistance (by prosecutors) in Kennedy child rape case?
• Some first-cut reactions to Justice Kennedy's work in Kennedy
• Culture of life trumps democracy and state experimentation in Kennedy
• Will (and can) "outraged" politicians really do anything about Kennedy?

Washington Post editorial supports rehearing in Kennedy child rape case

I am very pleased to see that the Washington Post, in this new editorial, is encouraging the Supreme Court to rehear the Kennedy child rape case in the wake of the discovery that the Justices got a key fact about federal law wrong.  Here is how the effective editorial ends:

The Supreme Court's legitimacy depends not only on the substance of its rulings but also on the quality of its deliberations. That's why we think the court needs to reopen this case -- even though we supported its decision.  The losing party, Louisiana, still has time to seek a rehearing, which the court could grant with the approval of five justices, including at least one from the majority.  The court could limit reargument to briefs on the significance of the UCMJ provision. We doubt the case will come out much differently; we certainly hope not. But this is an opportunity for the court to show a little judicial humility. Before the court declares its final view on national opinion about the death penalty, it should accurately assess the view of the national legislature.

As explained in this recent post, I also believe the Court should rehear Kennedy, though I am not optimistic that the Justices will take the case up again.  That said, I think this WaPo editorial can and should provide some important momentum to the Kennedy rehearing buzz.

While we are inside the Beltway, it is interesting to speculate whether any other prominent voices might actively urge a SCOTUS rehearing.  Specifically, what about Senator John McCain, who bashed the Kennedy ruling in a recent speech to law enforcement (noted here and here)?  Perhaps Senator McCain can introduce in the Senate a resolution urging the Justices to rehear Kennedy.  Perhaps Senator Obama will show his true commitment to a new politics by co-sponsoring such a resolution.  (Regular readers may recall that the Senate in summer 2004 passed a resolution encouraging the Justices in the wake of the Blakely decision to consider Blakely's impact on the federal sentencing system.)

As the Washington Post editorial effectively highlights, the fact that the Kennedy case deals with a high-profile and controversial issue may make it even more important and valuable for the the Justices to grant a rehearing.  After its rulings in Kennedy and Heller, many observers (justifiably?) see the Court acting like a super-legislature.  Just a decision to grant rehearing in Kennedy may go a long way toward showing that the Justices are at least trying to do more than just make partisan policy calls.

Some related recent posts:

• Could all the mistakes in Kennedy be corrected?
• A Reagan era irony in Senator McCain's recent judge-bashing
• Ineffective assistance (by prosecutors) in Kennedy child rape case?
• Some first-cut reactions to Justice Kennedy's work in Kennedy
• Culture of life trumps democracy and state experimentation in Kennedy
• Will (and can) "outraged" politicians really do anything about Kennedy?

Could all the mistakes in Kennedy be corrected?

Linda Greenhouse spotlights in this new article that a key legal mistake in the Kennedy child rape ruling is drawing attention and a notable admission of error:

In a highly unusual admission of error, the Justice Department acknowledged on Wednesday that government lawyers should have known that Congress had recently made the rape of a child a capital offense in the military and should have informed the Supreme Court of that fact while the justices were considering whether death was a constitutional punishment for the crime.

“It’s true that the parties to the case missed it, but it’s our responsibility,” the department’s public affairs office said in a statement. “We regret,” the statement said, “that the department didn’t catch the 2006 law when the case of Kennedy v. Louisiana was briefed.”...  The solicitor general’s office, which represents the federal government before the Supreme Court, did not file a brief in the case, and none of the 10 briefs that were filed informed the justices of the new federal law....

Speaking to reporters on Wednesday morning, the White House press secretary, Dana Perino, said the administration “was disturbed by the New York Times report that the court’s decision might be based on a mistake.”  The Justice Department is looking into what happened and what steps may now be taken, Ms. Perino said.

The Justice Department elaborated in its statement, which it issued in late afternoon. The department informed the court of the omission “shortly after learning of the law” on Tuesday, the statement said. As the department’s statement noted, only parties to a case can ask the justices to reconsider their decision.  The department might ask the court for permission to provide its views if Louisiana files a rehearing petition, the statement added.

Steve Wimberly, the first assistant in the Jefferson Parish, La., district attorney’s office, which handled the case for the state before the Supreme Court, said in an interview Wednesday that while no decision had yet been made, “we are strongly considering the option of asking the justices to reconsider the case.”  Mr. Wimberly added that Gov. Bobby Jindal, who denounced the court’s ruling, was involved in deciding how to proceed.

Though the mistake about military capital punishment law makes for a fascinating story, I do not think this legal particular itself would prompt the Supreme Court to reconsider its ruling.  (I see that Orin Kerr writing here at Volokh largely agrees in this assessment.)  However, combined with the (legally significant) negative reaction to the Kennedy decision, I cannot help but wonder if this story has some real legs.

Recall that a key linchpin of the Kennedy ruling is the majority's conclusion that there is a "national consensus" against child rape as a capital offense.  But, as this NRO commentary rights highlights, the "furious public outcry after the ruling was a pretty good sign that something was amiss in the majority’s survey."  indeed, this separate NRO piece makes an even more astute observation about evidence that there is not a consensus against making child rape a capital offense:

The leaders of both major parties were quick to oppose Kennedy — presumably not out of a desire to contravene society’s “standards of decency” in the middle of a presidential race.  At a press conference in the wake of the holding, Barack Obama commented: “I think that the rape of a small child, six or eight 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 does not violate our Constitution.”  So even the most liberal member of the Senate does not have a sense of decency as highly evolved as the Court’s.

I know very little about the legal and practical dynamics that surround rehearing petitions in the US Supreme Court (and I am hoping the folks at SCOTUSblog get on this issue ASAP).  Apparently the SG's office is prepared to file an amicus brief in (support of?) any rehearing petitioning.  Similarly, I think a number of amici who supported Louisiana originally might also support its rehearing efforts.

Of course, the big question is how many Justices need to vote for rehearing and whether any of the Supremes have a serious interesting in continuing this debate.  I have a nagging feeling that the four dissenting Justices in Kennedy have little interest in rehashing all these issues, and they may know that there is little chance that any members of the majority with change course.  But, if the Justices are truly open-minded on these issues (which they should be, but likely aren't), I hope they will recognize that the new relevant post-decision developments may demand humble reconsideration of a decision that many justifiably now view as especially suspect.

Ineffective assistance (by prosecutors) in Kennedy child rape case?

Linda Greenhouse has this fascinating follow-up to the Supreme Court's ruling in the Kennedy case declaring unconstitutional state efforts to make child rape a capital crime.  The article is headlined "In Court Ruling on Executions, a Factual Flaw," and here is how the article starts:

When the Supreme Court ruled last week that the death penalty for raping a child was unconstitutional, the majority noted that a child rapist could face the ultimate penalty in only six states — not in any of the 30 other states that have the death penalty, and not under the jurisdiction of the federal government either.

This inventory of jurisdictions was a central part of the court’s analysis, the foundation for Justice Anthony M. Kennedy’s conclusion in his majority opinion that capital punishment for child rape was contrary to the “evolving standards of decency” by which the court judges how the death penalty is applied.

It turns out that Justice Kennedy’s confident assertion about the absence of federal law was wrong.

A military law blog pointed out over the weekend that Congress, in fact, revised the sex crimes section of the Uniform Code of Military Justice in 2006 to add child rape to the military death penalty. The revisions were in the National Defense Authorization Act that year. President Bush signed that bill into law and then, last September, carried the changes forward by issuing Executive Order 13447, which put the provisions into the 2008 edition of the Manual for Courts-Martial.

Anyone in the federal government — or anywhere else, for that matter — who knew about these developments did not tell the court.  Not one of the 10 briefs filed in the case, Kennedy v. Louisiana, mentioned it.  The Office of the Solicitor General, which represents the federal government in the Supreme Court, did not even file a brief, evidently having concluded that the federal government had no stake in whether Louisiana’s death penalty for child rape was constitutional.

In addition to being very proud of the work of a fellow law blogger — in this case, "Dwight Sullivan, a colonel in the Marine Corps Reserve who now works for the Air Force as a civilian defense lawyer handling death penalty appeals" and who deserves lots of extra traffic for his post, The Supremes Dis the Military Justice System — I cannot help but enjoy the broader irony in this story. 

Usually, the story is that poor lawyers by the defense team in part explains why a defendant got sentenced to death.  This time, it would seem, poor lawyers by the prosecutors in part may explain why a death sentence was found unconstitutional.  (Of course, I seriously doubt the outcome would have been different even if the Justices had all their facts right.)