Sentencing Law and Policy

Examining what the Chief and Justice Ginsburg might do in Kennedy

Sherry Colb has this notable new essay at FindLaw, titled "Kennedy v. Louisiana and the Lessons of a Supreme Court Oral Argument."  Here is how it starts and ends:

On April 16, the U.S. Supreme Court heard argument in Kennedy v. Louisiana, a case challenging the constitutional validity of a death sentence imposed for the rape of a child. In this column, I will take up some of the intriguing ideas that emerged from the questions that various Justices posed to the attorneys arguing before them. In particular, Justice Ruth Bader Ginsburg and Chief Justice John Roberts, in their efforts to understand the force and content of earlier Court precedents, revealed important clues to their respective views on a variety of issues....

[T]he Justices' inquiries in Kennedy do suggest a greater likelihood of the Court's upholding the death penalty for child rape than one might have predicted prior to arguments.

More specifically, Justice Ginsburg appeared open to drawing a line between execution for the rape of an adult woman and execution for the rape of a child, a line that she defended, quite poorly, on feminist grounds. She also seemed poised to announce a new approach to interpreting precedents about the death penalty — one that would discount the votes of those in the majority who categorically consider the penalty unconstitutional.  Justice Scalia, too, apparently agreed that categorical anti-death-penalty votes should be ignored.

Finally, Chief Justice Roberts, by contrast to Justice Ginsburg, appeared to view the potential execution of rapists as evidencing moral progress toward an enlightened view of the harm of rape. In defending the State of Kentucky's right to execute child-rapists, moreover, he took the surprising position that courts have no reliable metric by which to determine which crimes are serious enough to call for execution.  If the Chief Justice can assemble four additional votes for this view (and he surely can count on Justices Scalia's and Thomas's), then we might see a future in which a growing category of crimes are subject to the ultimate penalty.  In a case involving the brutal rape of an eight-year-old by her stepfather, this could represent the most surprising development of all.

Some recent related posts:

• Hoping (foolishly?) that the Chief uses Kennedy to transform Eighth Amendment jurisprudence
• Missouri pols all calling for child rape to be a capital offense
• Will the FLDS case impact perceptions of child rape and sex offenders?
• The latest views of the Kennedy capital child rape case
• Focused analysis of distraction of Kennedy case
• Looking at capital child rape's constitutionality through the Atkins/Roper lens
• Resource page on Kennedy and the opaqueness of child rape statistics

Missouri pols all calling for child rape to be a capital offense

As detailed in this two pieces from the St. Louis Post-Dispatch, top political rivals share the belief that child rape should be a death penalty eligible offense:

• Blunt: Child rapists deserve death
• Nixon, too, backs death penalty for child rapists

Of course, the constitutionality of capital child rape is being contemplated by the Supreme Court right now in the Kennedy case.  And headlines like these might make it just a bit more likely that the Justices will not prevent from expanding the death penalty in this way.

Some recent related posts:

• Hoping (foolishly?) that the Chief uses Kennedy to transform Eighth Amendment jurisprudence
• Will the FLDS case impact perceptions of child rape and sex offenders?
• The latest views of the Kennedy capital child rape case
• Focused analysis of distraction of Kennedy case

Hoping (foolishly?) that the Chief uses Kennedy to transform Eighth Amendment jurisprudence

"The Eighth Amendment is a jurisprudential train wreck" is how Benjamin Wittes justifiably started this terrific article, entitled, "What is cruel and unusual?", appearing in the December 2005-January 2006 issue of Policy Review.   I basically agreed then, and still agree now, with this attack by Wittes on modern Eighth Amendment jurisprudence:

The Supreme Court's case law has left the amendment without coherent meaning.  No principle guides its reach.  No methodology solemnly pronounced in any case do the justices predictably follow in the next.  A punishment upheld today can be, without alteration, struck down tomorrow with no justice even admitting that his or her mind has changed.  The justices no longer even pretend to examine whether a punishment offends the amendment's textual prohibition. Instead they apply perhaps the single most impressionistic test ever devised by the court: whether the challenged practice has run afoul of "the evolving standards of decency that mark the progress of a maturing society."  Unsurprisingly, nine judges of wildly different politics, temperaments, and backgrounds do not generally agree on the standards or the methodology for assessing society's maturation, much less its substance.

For this reason (and some others), I have been hoping (as suggested here) that Chief Justice Roberts might come to the Court with some fresh ideas for a stale and rotting jurisprudence.  Consequently, I was very excited to read the oral argument transcript in the Kennedy child rape case to discover that the Chief was a very active questioner.  From the transcript, I got the impression that the Chief is troubled by the Court's standard state-counting approach to "evolving standards of decency" most recently applied in Atkins and Roper.

In addition, because I believe it is valuable and important to distinguish between offense conduct and offender characteristics in all areas of sentencing jurisprudence (as explained in this Stanford L. Rev. article), I was especially excited to see the Chief exploring an offense/offender distinction for Eighth Amendment adjudication (see tr. at pp. 19-20).  I very much like the idea that the Justices ought to be very deferential to legislatures concerning what offenses merit harsh punishments, but much less deferential as to what offenders merit harsh punishment.  I am hoping (perhaps foolishly) that the Chief will use the Kennedy case as an opportunity to try to re-engineer Eighth Amendment jurisprudence along these lines.

Focused analysis of distraction of Kennedy case

Writing at FindLaw, Marci Hamilton has this new piece entitled "The Supreme Court Considers Whether Imposing the Death Penalty for Child Rape Is Constitutional: The Arguments For and Against the Penalty."  Though focused mainly on the arguments presented to the Justices, the piece ends with this astute observation:

In sum, whether or not the Court upholds the death penalty for child abusers this Term, the entrenched barriers to identifying predators will not be eliminated, or even reduced. For that reason, from the perspective of the child being abused today or the survivor trying to cope in the wake of abuse decades ago, the case is a lot of hype - a paper battle that distracts from the far more essential battle for the reforms that are truly necessary if justice and decency are to be served.

The latest views of the Kennedy capital child rape case

Providing more grist for the mill (and for the printer), the transcript of today's Supreme Court argument in the capital child rape case of Kennedy v. Louisiana is available at this link.  Corey Yung is doing an extraordinary job covering the case is a series of posts at Sex Crimes, and Lyle Denniston now has this effective summary of the argument up on SCOTUSblog.

The first-cut analysis seems to point to Justice Kennedy being the key swing vote here.  But, as we discovered today with the Baze decision, we should not expect the tough criminal cases even in the death penalty setting to always come out as a 5-4 vote.

A quick round-up before Kennedy capital child rape argument

At 10am today, the Supreme Court is scheduled to hear argument in Kennedy v. Louisiana (07-343), the highly-anticipated case examining the constitutionality of imposing the death penalty for child rape. 

Both the mainstream media and bloggers have given the case considerable attention recently, with notable new pieces from CNN and Bloomberg and with new posts from Capital Defense Weekly and Concurring Opinions and The Faculty Lounge.  In the blogosphere, the most consistent and complete coverage of the Kennedy case has been over at Sex Crimes, which has a number of new posts on the case and has this fantastic resource page on the case.

For lots of reasons, I think that the Kennedy case could be very jurisprudentially consequential and that today's oral argument might well provide some insights into a case that I consider to be very challenging on the merits.  Some of my thoughts on the Kennedy case and the issues it raises can be found in these prior posts:

• SCOTUS Kennedy capital child rape case buzz starting
• Effective reflections on Baze and Kennedy
• Do Baze and Kennedy and big SCOTUS cases depend on just one Justice?
• Show me support for capital child rape laws
• Is the editorial board of the Denver Post omniscient or just obtuse?
• Looking at capital child rape's constitutionality through the Atkins/Roper lens
• Resource page on Kennedy and the opaqueness of child rape statistics
• A better poster child for the death penalty for child rape
• Debating the policy arguments around capital child rape
• Could there be symbolic and practical value in making repeat child rape a capital offense?
• A strong argument for commuting Patrick Kennedy's death sentence

SCOTUS Kennedy capital child rape case buzz starting

Next week the Supreme Court will hear oral argument on the constitutionality of the death penalty for a child rape offense in Kennedy v. Louisiana.  As evidenced by this article in USA Today, the pre-argument media buzz is starting.  Here are snippets:

The Supreme Court will weigh the constitutionality of the death penalty for child rape next week, in the case of a Louisiana man convicted of raping his 8-year-old stepdaughter. The dispute, closely followed by state officials, social workers and defendants' rights groups, marks the first time since 1977 that the justices will consider whether rape can be punished by death....

Several states, including Missouri, have signaled that if the court permits the death penalty for child rape in Louisiana, they may try to enact such laws. Five states already plainly allow capital punishment for raping young children.

Social workers warn that if the court sanctions the penalty for child rape, it could further discourage reporting of the crime because in the majority of child sexual assaults, the attacker is a relative or friend of the victim....

Detailed DPIC resource page for Kennedy child rape capital case

I just discoverd that the visit Death Penalty Information Center has this new webpage on the Kennedy capital child rape case from Louisiana to be heard by the Supreme Court next month.  This page hs lots of helpful information, including links to all the briefs filed, concerning what could be one of the biggest criminal justice rulings coming from SCOTUS this Term.

Show me support for capital child rape laws

As detailed in this official press release, "Gov. Matt Blunt and members of the Missouri General Assembly filed a brief with the U.S Supreme Court today in support of a Louisiana law allowing the death penalty as an appropriate form of punishment for an individual convicted of child rape." Here are more specifics from the release:

“Violent sex offenses against children are unspeakable crimes, crimes so horrific that they defy comprehension and demand harsh punishment,” Gov. Blunt said. “Crimes like these deserve the most serious punishment we can possibly deliver. I strongly support legislation allowing the death penalty for convicted child rapists. As we seek legislation to allow this punishment in Missouri, we have filed a legal brief with the U.S. Supreme Court supporting Louisiana in their fight to better protect innocent children from deviant sexual predators.”

Gov. Blunt and members of the Missouri General Assembly filed an amici curiae, or “friends of the court” brief, asking the U.S. Supreme Court to clarify previous rulings that the Eighth Amendment does not prohibit the death penalty for child rapists. The brief also argues that the court should not preclude a national debate on this issue and allow states to form a consensus.

This story about the filing includes this link to the amicus brief.

Looking at capital child rape's constitutionality through the Atkins/Roper lens

Over at CrimProf, Mike Mannheimer has this great extended post titled "Role Reversal in Kennedy v. Louisiana: Or What's Sauce for the Goose . . . ."  Here are snippets from the start of the post:

Last night, the death penalty seminar I teach did a moot court of Kennedy v. Louisiana, presenting the question whether capital punishment is unconstitutionally disproportionate to the crime of the rape of a child....  The thing that struck me most after reading the briefs and participating in the moot was the sense of role reversal from Atkins v. Virginia and Roper v. Simmons.  Kennedy is almost the mirror image of those cases in several respects.

As I have suggested in a number of prior posts (and will explain more fully as next month's oral argument approaches), there is an extraordinary potential richness to the Kennedy case.  I am expecting — or at least hoping — that Kennedy ends up as one of the most consequential Eighth Amendment rulings in a long time.  And that may be true no matter what the exact outcome in this case.

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

• Debating the policy arguments around capital child rape
• Merits brief of defendant in Kennedy, the SCOTUS capital child rape case
• Louisiana's brief in Kennedy arguing for capital child rape
• Resource page on Kennedy and the opaqueness of child rape statistics

Louisiana's brief in Kennedy arguing for capital child rape

Thanks to Sex Crimes, I now see that Louisiana's merits brief in the Kennedy SCOTUS capital child rape is now available at this link.  Here are excerpts from the brief's "summary of argument":

The death penalty is not cruel and unusual punishment for the rape of a child.  It is evident that societal awareness of the prevalence of child sexual abuse has increased tremendously in the last few decades.  Moreover, public outrage over the sexual violation of immature young children by predatory adults is extremely great due to the recognition that these offenders target and harm the most vulnerable members of our society.

While this Court in Coker found that the death penalty was excessive for the rape of an adult woman, it has not found the death penalty to be excessive for all non-homicide crimes, or for all rapes.  Objective indicia reflect that there is currently a significant trend to provide the death penalty as punishment for at least some rapes where the victim is a child. Seven states have legislation providing the death penalty for child rape, and of those States, only Florida’s statute has been invalidated by its state supreme court.  Three other states are presently considering legislation which would authorize the death penalty as punishment for the rape of a child committed under certain circumstances.  Additionally relevant to a determination of societal consensus with regard to authorizing the death penalty for this non-homicide offense, are the fifteen capital jurisdictions (including the federal government) that authorize the death penalty for a variety of non-homicide offenses, and the recent widespread enactment of “Megan’s Laws,” which require sex offenders to register and provide notification to the community.  Juries have returned death sentences in two of the five cases in Louisiana in which it is known that the issue was submitted to a jury. In other states, the laws are so recently enacted that the fact that no one has yet been capitally convicted in those states does not demonstrate that juries are unwilling to impose the death penalty for the rape of a child.  Therefore, objective indicia confirm that a current trend strongly supports imposition of the death penalty for this exceedingly grave offense. The State respectfully submits that legislative consideration of this issue should not be prematurely foreclosed.

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

• Debating the policy arguments around capital child rape
• Merits brief of defendant in Kennedy, the SCOTUS capital child rape case
• Resource page on Kennedy and the opaqueness of child rape statistics
• A capital experiment spreading in the state laboratories
• Analysis of capital child rape laws
• Debating death for child rape
• Could there be symbolic and practical value in making repeat child rape a capital offense?

Colorado moving forward with capital child rape bill

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

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

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

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

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

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

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

• Debating the policy arguments around capital child rape
• Merits brief of defendant in Kennedy, the SCOTUS capital child rape case
• Resource page on Kennedy and the opaqueness of child rape statistics
• A capital experiment spreading in the state laboratories
• Analysis of capital child rape laws
• Debating death for child rape
• Missouri Governor calls for child rape to be a capital offense
• Could there be symbolic and practical value in making repeat child rape a capital offense?

Merits brief of defendant in Kennedy, the SCOTUS capital child rape case

As noted in posts in this Kennedy case archive, the Supreme Court later this term will hear Kennedy v. Louisiana, a case allowing it to review the constitutionality of state laws that make the death penalty a punishment for the crime of child rape.  (Over at his great blog Sex Crimes, Corey Yung now has this new resource page with on-line materials related to Kennedy v. Louisiana).  This week the petitioner filed his merits brief, which can be downloaded below.  Here are snippets from the argument summary:

The death sentence imposed on petitioner constitutes cruel and unusual punishment in violation of the Eighth Amendment.

I. Punishing the crime of child rape with the death penalty cannot be squared with this Court’s decision in Coker v. Georgia, 433 U.S. 584 (1977). There, six Justices agreed “that the death penalty, which is unique in its severity and irrevocability, is an excessive penalty for the rapist who, as such, does not take human life.” Id. at 598 (plurality opinion) (quotation omitted). Subsequent decisions have made clear that capital punishment is categorically impermissible for person-on-person violence that does not result in death, and in which the offender does not attempt or intend to kill or display reckless indifference toward human life....

II. Even if it were permissible under some circumstances to impose the death penalty for child rape, petitioner’s sentence would still violate the Eighth Amendment. This Court’s jurisprudence requires capital sentencing statutes genuinely to narrow the class of death-eligible defendants in order to separate the most culpable offenders from others who have committed the same crime. But Louisiana’s capital rape law contains no narrowing mechanism that can serve to differentiate petitioner’s case in any rational way from the many child rape prosecutions in the State in which the death penalty is neither sought nor imposed.

Download kennedy_v. La merits.pdf

Debating the policy arguments around capital child rape

The upcoming issue of the National Law Journal has this commentary by Vivian Berger, headlined "The Death Penalty — Unwise for Child Rape."  Though the title of the piece suggests it concerns policy arguments, nearly the entire piece is focused on arguments in the Kennedy case surrounding the constitutionality of capital child rape.  That said, the commentary ends with this paragraph:

Finally, even if constitutional — and despite the heinous nature of the crime — statutes like Louisiana's represent bad social policy.  Child rape is generally committed by close family members or friends.  By raising the stakes to life or death, such laws will likely augment the existing problem of underreporting.  Moreover, protracted capital proceedings will worsen the youthful witness's trauma.  For these reasons, even death penalty advocates should resist it in this context.

I have seen these arguments before, but I am eager to explore them with a bit more sophistication.

First, as for the underreporting claim, I share the instinct that making child rape a capital offense could augment the existing problem of underreporting.  But do we know this is true?  Isn't it possible that all the attention that the Kennedy case is bringing to the issue of child rape might actually lead to increased reporting of this terrible crime.  Notably, this research article discussing the underreporting of violent crimes against juveniles urges authorities to take "steps to emphasize the criminal seriousness of such offenses."  What emphasizes the seriousness of an offense more than making it potentially subject to the death penalty?

Second, as to the concern for "youthful witness's trauma," this assumes that most capital child rape charges will go to trial.  But I suspect that the majority of capital child rape indictments, just like the majority of capital homicide indictments, will lead to a plea deal to a lesser charge and thereby avoid the need for protracted capital proceedings.   As I have suggested in a number of prior posts (see here and here and here), the biggest impact of having the death penalty may be its impact on prosecutorial charging and plea bargaining practices.

I make these points not in an effort to make an affirmative case for capital child rape, but just to reiterate my concern that many policy arguments made against capital child rape tend to be based on supposition and assumptions, rather than on hard evidence.

Resource page on Kennedy and the opaqueness of child rape statistics

Over at his great blog Sex Crimes, Corey Yung now has this new resource page with on-line materials related to Kennedy v. Louisiana, the case to be heard by SCOTUS later this Term concerning the constitutionality of child rape as a capital offense.  The page got me to thinking about whether there is any good empiricism on the number and type of child rape offenses in the US.  A hasty on-line search led me to these less-than-perfect data sources:

• This BJS publication, titled "Child Rape Victims, 1992," which provides a data "on the ages of female rape victims" obtained from only 15 States based on reports to police in 1992.

• This article from the Juvenile Justice Bulletin, titled "Explanations for the Decline in Child Sexual Abuse Cases," which only discusses trends and does not focus only on rape.

• This fact sheet on child sexual assault from the Crimes Against Children Research Center.

I raise this data issue because the non-homicide crime which got Patrick Kennedy placed on death row ought to be placed in some broader context.  As I have said this prior post, because the facts surrounding the Kennedy case do not seem extremely aggravating, I am troubled greatly by the fact that Kennedy is one of the very few persons sentenced to death for a non-homicide offense.  This reality is even more troubling if, as I suspect, data reveal that there are ten of thousands of crimes each year similar to the one that got Patrick Kennedy sentenced to death.

Do Baze and Kennedy and big SCOTUS cases depend on just one Justice?

In the Legal Times, Tony Mauro has this new piece on the state of SCOTUS headlined, "For the Supreme Court, a Docket Full of Drama: High-profile election-year cases will keep justices in the limelight."  The piece begins with a discussion of the Baze lethal injection to be argued tomorrow morning.  And, though new, the article is already a bit dated because it was obviously written before the cert grant in Kennedy, the case from Louisiana that will test the constitutionality of child rape as a capital offense (details here and here).

An effective post here by Eugene Volokh has me wondering whether Baze and Kennedy and the other big capital cases this Term all will turn on the thoughts and votes of a single Justice, Anthony Kennedy.  Since Justice O'Connor's departure two years ago, nearly all the significant capital rulings by the Court have been 5-4 rulings with Justice Kennedy being the swing vote.  If past is prologue, there is every reason to expect and predict that the outcomes in both Baze and Kennedy will turn on Justice Kennedy's views on lethal injection and capital punishment for non-homicide crimes.

And yet, Eugene's post suggests the possibility that gender and other concern could perhaps impact the traditional perspectives of some Justices in Kennedy.  And, as I have suggested in this prior post, I think the peculiar nature of the issues and dilemmas raised in Baze could skew somewhat the recent 5-4 voting dynamics.  However, this may be my own wishful thinking because I am eager, when contemplating the possible outcomes in Baze and Kennedy, to do more than just try to psychoanalyze Justice Kennedy.   

Reflecting on these realities highlights for me, yet again, why I find the Supreme Court's non-capital jurisprudence sooooooo much more interesting than its capital jurisprudence.  Notably, Justice Kennedy has not been a swing vote in any single one of the Court's Apprendi line of cases over the last decade.  Indeed, in many of these cases, a fascinating array of different Justices have been key swingers, ranging from Justice Thomas (in Almedarez-Torres), to Justices Scalia and Breyer (in Harris), to Justice Ginsburg (in Booker).  Moreover, in other cases the final vote counts and the nature of the opinions are often pleasantly surprising: Cunningham was a 6-3 decision with the new Chief joining the Blakely five; Rita was technically an 8-1 decision though Justice Scalia wrote a dissent-like opinion and Justice Souter dissenting directly; Gall and Kimbrough were technically 7-2 decisions, but only Justice Alito dissented on the main merits. 

Media coverage of cert grant in Kennedy case

This post at How Appealing collects all the major media coverage of the Supreme Court's decision yesterday to review the constitutionality of state laws that make the death penalty a punishment for the crime of child rape (basics here).  Here's one snippet from the New York Times piece by Linda Greenhouse:

The new case, from Louisiana, is likely to be argued in April, meaning that during the course of its current term, the Supreme Court will be examining both the most common method of execution and a categorical question about which crimes are appropriate for the death penalty.

No one has been executed in the United States for a crime other than murder since 1964.  Of some 3,300 inmates of death row today, only two are facing execution for an offense that did not involve a killing. Both are on Louisiana’s death row. The Supreme Court agreed to hear an appeal from one of them, Patrick Kennedy, who was convicted and sentenced to death in 2004 for raping his 8-year-old stepdaughter.

As I have detailed in a number of prior posts, I think the Kennedy case is in various ways a great and a terrible vehicle for considering these Eighth Amendment issues.  Also, I still believe, as I suggested in a prior post, that the "best" outcome in Kennedy would be for the Governor of Louisiana to commute Kennedy's sentence to life imprisonment in order to avoid this case from making bad law.

Some prior posts on the Kennedy litigation and the death penalty for child rape:

• Louisiana Supreme Court upholds death sentence for child rape
• Direct test of constitutionality of the death penalty for child rape
• A capital experiment spreading in the state laboratories
• Analysis of capital child rape laws
• Debating death for child rape
• Missouri Governor calls for child rape to be a capital offense
• Could there be symbolic and practical value in making repeat child rape a capital offense?