Saturday, July 05, 2008

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:

July 5, 2008 in Kennedy child rape case | Permalink | Comments (23) | TrackBack

Thursday, July 03, 2008

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.

July 3, 2008 in Kennedy child rape case | Permalink | Comments (22) | TrackBack

Wednesday, July 02, 2008

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.)

July 2, 2008 in Kennedy child rape case | Permalink | Comments (22) | TrackBack

Tuesday, July 01, 2008

Will Kennedy have any cross-over impact for non-capital cases?

A week after it was handed down, I am now re-reading the Supreme Court's work in the Kennedy child rape case to ponder whether any aspects of the majority's Eighth Amendment holding or dicta might have an impact in non-capital cases. 

As regular readers know, I have always been troubled by the eagerness of the Supreme Court (and some lower courts) to find many constitutional problems with death sentences and yet few constitutional problems with extreme non-capital sentences.  Disappointingly, most parts of the Kennedy ruling have a "death is very different" quality that may keep Kennedy from helping non-capital defendants.  Nevertheless, I think these snippets from the Kennedy majority opinion could and should have some resonnnace in non-capital contexts (all cites/quotes omitted):

The [Eighth] Amendment proscribes all excessive punishments, as well as cruel and unusual punishments that may or may not be excessive [and its] protection against excessive or cruel and unusual punishments flows from the basic precept of justice that punishment for a crime should be graduated and proportioned to the offense.  Whether this requirement has been fulfilled is determined not by the standards that prevailed when the Eighth Amendment was adopted in 1791 but by the norms that currently prevail.  The Amendment draws its meaning from the evolving standards of decency that mark the progress of a maturing society.  This is because the standard of extreme cruelty is not merely descriptive, but necessarily embodies a moral judgment.  The standard itself remains the same, but its applicability must change as the basic mores of society change.  (Kennedy slip op. at 8.)

The constitutional prohibition against excessive or cruel and unusual punishments mandates that the State’s power to punish be exercised within the limits of civilized standards.  (Kennedy slip op. at 24.)

In addition, the Kennedy ruling suggests that, whenever a defendant challenges an authorized punishment under the Eighth Amendment, the judiciary's "own understanding of the Constitution and the rights it secures" must be part of the constitutional analysis.  (Kennedy slip op. at 24).  And, in turn, this appears to require the judiciary to consider "the fundamental, moral distinction between a 'murderer' and [and other crime that] is not like death in its severity and irrevocability."  (Kennedy slip op. at 27.)  Indeed, suggests the Kennedy court, as a matter of constitutional law and Eighth Amendment doctrine, even crimes that "may be devastating in their harm ... cannot be compared to murder."  (Kennedy slip op. at 27.)

If read to be more than just a death penalty ruling, one might reasonably assert that Kennedy's holding or dicta would preclude a jurisdiction from ever punishing a non-murder crime with the same terms it uses to punishes its worst murders.  This, in turn, would mean that Kennedy could raise serious constitutional questions for all sorts of non-homicide LWOP sentences and extremely long prison terms imposed for relatively minor offenses.  Sadly, however, I do not expect many (any?) lower courts to extend the logic of the Kennedy holding and dicta to non-capital settings.

July 1, 2008 in Kennedy child rape case, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (9) | TrackBack

Thursday, June 26, 2008

Seeking a feminist perspective: is the Kennedy opinion sexist?

I am disappointed that folks at Feminist Law Professors and other prominent bloggers concerned about mysogny have not yet provided a gendered perspective on the Supreme Court's Kennedy ruling.  Rape is a gendered crime, and the Supreme Court's 1977 Coker opinion incorporates lots of language and themes that reflect the antiquated gendered view of the nine old men who were on the Court at that time.  (When I teach these topics, the women in my class are uniformly offended by some of the language in Coker that is quite dismissive of the harms suffered by rape victims.)

Justice Kennedy's opinion for the Court in Kennedy uses language that is much more sensitive to the harms of rape. Nevertheless, the ruling still essential embraces the fundamentals of Coker.  And, better language notwithstanding, the ruling in Kennedy asserts that an evolved moral society does not view even the worst forms of rape to be as tragic as many killings, and it concludes that states are constitutionally misguided when seeking to treat the most horrible rapes as seriously as some horrible killings. 

Disappointingly, Justice Ginsburg, the only woman on the Court and one with a long record of feminist concern, did not follow-up her seemingly gendered questions at oral argument with an opinion in Kennedy.  Consequently, I am eager to know whether my own feminist leanings are misguided when I worry that the Kennedy ruling reflects a kind of implict or unconscious sexism.

Some related recent posts on Kennedy:

June 26, 2008 in Kennedy child rape case | Permalink | Comments (27) | TrackBack

Will (and can) "outraged" politicians really do anything about Kennedy?

As detailed in this AP article, headlined "Unbowed, politicians vow to execute child rapists," and this CBN News article, headlined "Politicians Outraged by Child Rape Ruling," many elected officials are not too pleased with the Supreme Court's work in Kennedy declaring unconstitutional all capital child rape laws.  Here are the basics from the CBN story:

Dissent from the high court's ruling reverberated around the country from Louisiana — the state where the case originated — to various levels of government. "I think the rationale for this ruling was faulty — was absurd," Louisiana's Governor Bobby Jindal said.

There was even outrage on the campaign trail, where both contenders for the White House condemned the justices' decision. And some states promised to keep looking for ways to hand down the death sentence for child rapists.

Though I can see the basis for political outrage, I do not see what states can do to work around this ruling, at least not until they can develop lots of pertinent evidence that there is a national consensus in favor of making child rapists death eligible.  And it is not even clear that such evidence would readily lead the Kennedy five to change course given their "independent judgment" against all such laws.

Here's an idea for the politicians who are really annoyed and really want to do something: propose and pass a legislative resolution saying that they strongly believe that the evolved moral norms of their constitutents would support the possibility of capital child rape for horrific, extreme cases involving multiple victims and repeat offenders.  I think that such a general resolution (which would not change and state laws and should be hard to vote against) could get lots of support in lots of state legislatures.  And if a majority of legislatures were to pass such a resolution, perhaps states other that Louisiana could try to get their (more narrowly tailored) capital child-rape laws upheld.

Some related posts:

June 26, 2008 in Kennedy child rape case | Permalink | Comments (16) | TrackBack

Culture of life trumps democracy and state experimentation in Kennedy

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

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

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

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

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

In most cases justice is not better served by terminating the life of the perpetrator rather than confining him and preserving the possibility that he and the system will find ways to allow him to understand the enormity of his offense.

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

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

June 26, 2008 in Kennedy child rape case | Permalink | Comments (21) | TrackBack

Wednesday, June 25, 2008

Some first-cut reactions to Justice Kennedy's work in Kennedy

I am finally getting a chance to read the Kennedy case in full and general reaction will be coming in future posts.  But, as I work through the ruling, and I cannot help wondering aloud about some head-scratching passages in the majority's opinion prohibiting states for making child rape eligible for the sentence of death.  Specifically, I am especially perplexed by the sentence in bold from this paragraph:

Evolving standards of decency must embrace and express respect for the dignity of the person, and the punishment of criminals must conform to that rule. See Trop, supra, at 100 (plurality opinion). As we shall discuss, punishment is justified under one or more of three principal rationales: rehabilitation, deterrence, and retribution. See Harmelin v. Michigan, 501 U. S. 957, 999 (1991) (KENNEDY, J., concurring in part and concurring in judgment); see also Part IV–B, infraIt is the last of these, retribution, that most often can contradict the law’s own ends.  This is of particular concern when the Court interprets the meaning of the Eighth Amendment in capital cases. When the law punishes by death, it risks its own sudden descent into brutality, transgressing the constitutional commitment to decency and restraint.

I genuinely have no idea what this bolded sentence means, and whether it could have meaning/impact in settings beyond capital cases when the Court is applying the Eighth Amendment.  Can anyone help me understand what the heck Justice Kennedy and the others are saying here?

June 25, 2008 in Kennedy child rape case | Permalink | Comments (18) | TrackBack

Tuesday, June 17, 2008

Final version of "Engaging Capital Emotions"

The Supreme Court should soon hand down its opinion about the constitutionality of capital child rape laws.  While we wait, readers are welcome to check out the finalized version of the commentary Stephanos Bibas and I put together, titled "Engaging Capital Emotions," which is already in print here as at the Northwestern University Law Review Colloquy.  Helped by the Colloquy's terrific editorial team, we have refined a few points from our first drat and added this conclusion: 

Emotions can evolve and be informed. Some opponents contend that capital-child-rape laws will harm child-rape victims and their families. If so, this harm will undercut the sympathy and empathy that drive these laws, leading legislators to pull back.  As our discussion highlights, democratic processes engage capital emotions effectively in deciding which crimes are eligible for the death penalty.  Thus, unelected judges should be wary of stifling a healthy, democratic national dialogue that can air and develop capital emotions.

Cool, somber courtrooms can seem hostile to emotional expression. But, especially in criminal justice, we must neither forget nor disdain seething passion. Especially where those passions are most intense, in capital cases, lawyers and scholars ought to combine doctrinal analysis with sensitivity to emotion.

Related posts:

June 17, 2008 in Kennedy child rape case | Permalink | Comments (2) | TrackBack

Wednesday, June 04, 2008

Reflections on reflections on emotions and the death penalty

As detailed in this post, Stephanos Bibas and I have a new commentary (now available here at SSRN) titled "Engaging Capital Emotions."  In addition to comments here from usual SL&P suspects, Corey Yung at Sex Crimes provides these intriguing (and kind) reactions to our commentary.  Here are excerpts:

I've just finished reading the draft and I highly recommend checking it out.  My initial thoughts are the emotion/rational divide basically mirrors (or is the same as) the retribution/deterrence divide. Since retribution is often explained not in its arcane philosophical terms, but instead in terms of payback, it fits neatly with emotions. Someone being punished fulfills an emotional need that is basically retribution. Deterrence theories, on the other hand, are, with regularity, theoretically and empirically grounded. Deterrence arguments fit the "rational" label.

I strongly agree with B&B that emotions are unavoidable in discussions of criminal sentencing. I think this is particularly the case when sex offenders are involved. I'm less convinced concerning the normative argument that emotions serve a net positive role in sentencing debates.  As my previous responses to Berman's posts about Kennedy illustrate, I'm tentatively a deterrence-oriented scholar concerning sentencing policy. If a law doesn't serve a net utilitarian/deterrence function, it should not be adopted. Retribution is too abstract and sometimes counter-productive (from a utilitarian perspective) to fully inform policy.  So, in the Kennedy case, I think the normative argument for emotion assumes that retribution should be the controlling theory.  Perhaps deterrence factors in the background, but emotion should be the lodestar for debate. While I think descriptively, this claim is probably true, I disagree with B&B that emotion should be central.  To do so risks the negative utilitarian consequences that I and others have articulated in response to the Louisiana capital rape statute (which Berman has, to his credit, argued against in other forums).

In my view, connecting the emotion/rational divide to the retribution/deterrence divide is insightful, but incomplete.  I personally think there is and should be some rationality in retribution and also that there is and must be some emotion in deterrence. 

Moreover, to go a bit meta, I often notice a lot of emotion in the way in which supposedly "rational" scholars examine and debate deterrence in the context of the death penalty.  In the Kennedy context, I am yet to see a truly sober and meticulous analysis of whether capital child rape could be reasonably expected to serve utilitarian interests.  Rather, in many critiques of capital child rape, we get what seem to me to be emotion-driven and highly-questionable assertions that there will be negative consequences from allowing child rape to be a death-eligible crime.

To go even more meta, I think Corey's points strike to the core of what I consider one of the hardest conceptual challenges of utilitarian theory that arises in a lot of punishment settings: it is a legitimate good with a place in the utilitarian calculus if people feel good about making others feel bad?  I sense that some (many?) citizens feel good emotionally knowing that society will threaten to sentence some child rapists to death.  Most utilitarians (myself included) have never quite been sure about whether and how these feelings ought to enter into a utilitarian calculus.

June 4, 2008 in Death Penalty Reforms, Kennedy child rape case, Purposes of Punishment and Sentencing | Permalink | Comments (7) | TrackBack

Sunday, June 01, 2008

Some sober reflections on emotions and the death penalty

Inspired in part by the Kennedy capital child rape case and other notable recent death penalty debate, Stephanos Bibas and I put together a new commentary (now available here at SSRN) titled "Engaging Capital Emotions."  Here is the abstract:

The Supreme Court, in Kennedy v. Louisiana, is about to decide whether the Eighth Amendment forbids capital punishment for child rape. Commentators are aghast, viewing this as a vengeful recrudescence of emotion clouding sober, rational criminal justice policy.  To their minds, emotion is distracting.  To ours, however, emotion is central to understand the death penalty.  Descriptively, emotions help to explain many features of our death-penalty jurisprudence.  Normatively, emotions are central to why we punish, and denying or squelching them risks prompting vigilantism and other unhealthy outlets for this normal human reaction.  The emotional case for the death penalty for child rape may be even stronger than for adult murders, contrary to what newspaper editorials are suggesting.  Finally, we suggest ways in which death-penalty abolitionists can stop pooh-poohing emotions' role and instead fight the death penalty on emotional terrain, particularly by harnessing the language of mercy and human fallibility.

June 1, 2008 in Death Penalty Reforms, Kennedy child rape case, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (15) | TrackBack

Wednesday, April 30, 2008

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 penaltyone 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:

April 30, 2008 in Kennedy child rape case | Permalink | Comments (0) | TrackBack

Monday, April 21, 2008

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:

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:

April 21, 2008 in Kennedy child rape case | Permalink | Comments (16) | TrackBack

Sunday, April 20, 2008

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.

April 20, 2008 in Kennedy child rape case | Permalink | Comments (2) | TrackBack

Thursday, April 17, 2008

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.

April 17, 2008 in Kennedy child rape case | Permalink | Comments (0) | TrackBack

Wednesday, April 16, 2008

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.

April 16, 2008 in Kennedy child rape case | Permalink | Comments (18) | TrackBack

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:

April 16, 2008 in Kennedy child rape case | Permalink | Comments (3) | TrackBack

Tuesday, April 08, 2008

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....

April 8, 2008 in Kennedy child rape case | Permalink | Comments (8) | TrackBack

Thursday, March 27, 2008

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.

March 27, 2008 in Kennedy child rape case | Permalink | Comments (0) | TrackBack

Saturday, March 22, 2008

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.

March 22, 2008 in Kennedy child rape case | Permalink | Comments (3) | TrackBack