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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 at 05:01 PM | Permalink


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Stevens' questioning about the lack of permanent injury to the rape victim was remarkable.

Posted by: federalist | Apr 16, 2008 5:10:27 PM

As are any questions that challenge your point of view, I'm sure.

Posted by: Anon | Apr 16, 2008 7:20:40 PM

I strongly suspect Kennedy won't rely on Kennedy. There are two issues at bar in Kennedy, per se constitutionality of the statute and, for lack of a better term, that the capital rape statute is overly broad. The Court can sidestep the ultimate issue, constitutionality of death for child rape, by holding the statute at bar here is overly broad. I suspect you'll see a 7-2 or even 8-1 on the overbreadth issue, and a punt on the ultimate issue.

Posted by: karl | Apr 16, 2008 9:23:48 PM

yeah, anon, that's right--I am just an ignorant trogolodyte who cannot deal with other points of view . . . .

Stevens' line of questioning was quite jarring. It reminded me of an opinion from the Ninth Circuit, wherein a brutal and premeditated murder over some stereo equipment was deemed "not especially heinous".

I think that the overly broad analysis is a tougher nut than you may think, karl. What is the ultimate category? Child molestation? Rape generally? While the 8th Amendment has been turned into a detailed code of capital criminal procedure (funny, that), I don't think there's a code section in there that says what the broad criminal offense covered by the specific acts in this case, i.e., the penetration of an 8 year old girl. Of course, that may not stop Stevens, Souter or Ginsburg, but a Justice committed to the rule of law just may not want to get into that thicket.

Posted by: federalist | Apr 16, 2008 9:52:20 PM

If Justice Stevens was jarring, Ms. Clark was manipulative. It was not the physical scarring, after all, that constitutes an aggravating factor in the statute. It is more appropriately the adverse mental consequences of the crime that Louisiana is attempting to use to justify imposition of the death penalty, although this is not required to make the act death-eligible. This exchange was revealing:

JUSTICE STEVENS: Do we know more about the crime now than we did years ago?

MS. CLARK: Well, I think that we do. I
think that that is solely reflected in the child 6 pornography laws that have come about since then. In Osborne versus Ohio, the Court said, after Coker, you can't even possess child pornography in the privacy of your own home.
So I think that -- because it is so harmful. And I think that that along with Megan's Law, I think that those sort of cases are also recognition of the fact that we now know more about this crime.

As was Mr. Cruz's opening:

MR. CRUZ: Mr. Chief Justice, and may it
please the Court: Few evolving standards of decency are more pronounced that the growing understanding in modern society of the unique and irreparable harm caused by violent child rape.

Now, the statute does not have a "violence" requirement, unless Mr. Cruz means that anal or vaginal sex with a child under 12 (now by statute under 13, inclusive apparently of oral intercourse) is by definition violent. If we accept the psychological "revictimization" theory, as federalist does, I wonder what these reformers have in mind for those who possess child pornography. Now, consider this in light of Justice Kennedy's comment:

JUSTICE KENNEDY: But there was some 6 indication that in most cases the prosecutors, in part to see if they can get a plea bargain, begin by saying they're going to charge with the death penalty. And I'd like you to comment on prosecutorial discretion. Again,
it cuts to weight. In one sense, it's -- it's a check, so that only the most egregious cases are covered. On the other hand, there's a temptation to overreach, and it's an argument that Petitioners make for saying that the death penalty should not apply.

This troubles me, and I think this is once again points to the problem of narrowing. Since it applies to all offenders, there's simply no aggravating factor to survive Maynard v. Cartwright, as I understand that decision.

I do not see the Court approving this law, although I get the sense that they are trying to find a way to narrowly invalidate this sentence and law.

Posted by: Alec | Apr 16, 2008 10:39:57 PM

Stevens comment was perfectly legitimate, the rape victim doesn't die, while a murder victim does die. They may not even have a permanent injury. Assaulting someone so they lose their arm is worse than raping a 12 year old. In fact, the 12 year old might like it. A 12 year old boy who gets to have sex with his hot 20 year old teacher is not a victim. He's the coolest kid in school. Execute the teacher? Please. All this stuff about presumed irreparable harm is incredibly disingenuous and borders on unethical argument by counsel.

I was surprised that nobody brought up the fact that letting the state execute someone because they did something to a victim short of killing him/her gives criminals a great incentive to kill their victims. If you're going to be executed anyway, you may as well kill the victim who will be the primary witness against you at trial. Any law that makes killing rational is an objectively bad law. I'm sick of allowing bad laws to stand. A bad law should be an unconstititonal law. The constitution does not authorize Congress to pass irrational laws, and the due process clause protects society as a whole from irrational laws (a collective right against irrational laws). That's my argument and I'm sticking o it.

Finally, the claim that crimes are being committed against children that "are so horrendous nobody could even imagine them 30 or 40 years ago" (to paraphrase) is ridiculous. Children have always been raped and beaten and abused. The only thing that's changed is we actually care about it now. It was the norm for 12 year old kids to be married off and raped 50 years ago. People got pregnant so they could squirt out kids to work the farm and have sex with on the hay in the barn. And the vast majority of those kids grew up to be perfectly normal. At the very least, not all of them were "irreparably damaged" by the intercourse.

Posted by: bruce | Apr 17, 2008 11:21:21 AM

We get it, Bruce. You like child rape and you can't stand people who disagree with you. Thanks for reminding us that you still have an internet connection.

Posted by: | Apr 17, 2008 4:28:20 PM

I don't "like" child rape. If I could push a button to make it never happen again, I'd push the button. I'm just not carried away with it. It's worse than some crimes, and less harmful than others.

Your comment proves my point. Anything other than "woah child rape is the worst, no question, just horrible horrible horrible, the worst crime, permanent damage to the precious children" will get you flamed big time, and apologies will be demanded. It's mass delusion and extorted group-think. Any suggestion that child rapists (which, I remind you, can be the 20 year old hot blond, big-tittied teacher having sex with her 16 year old male student, while he has a huge smile on his pimply face) shouldn't be punished more than the previous guy said they should be punished will cause people to despise you.

As for people who disagree with me... i'm not calling for them to be executed.

Posted by: bruce | Apr 17, 2008 8:35:27 PM

Bruce, when you write things like this:

"Any suggestion that child rapists (which, I remind you, can be the 20 year old hot blond, big-tittied teacher having sex with her 16 year old male student, while he has a huge smile on his pimply face)"

don't whine when people think you're a freak.

Posted by: federalist | Apr 18, 2008 1:09:14 AM

Federalist - what is so remarkable about a Supreme Court Justice asking questions based on an amicus brief from a professional group engaged in treatment of victims of those crimes? Fact is - trauma affects people differently and is treatable. It is also perfectly rational to argue that if rape of a child is elgible for the death penalty due to its potential (not guarantee) to cause psychological problems, why are other forms of injuries to children (i.e., emotional or physical abuse, neglect, not reading enough to them when they are babies, not enough hugs, etc.) not punishable by death? Physical abuse can be just as damaging to a child as sexual abuse yet no one is arguing that simple assault on a child be punishable by death.

Its a perfectly reasonable question for two reasons - first, there is no guarantee of a permanent injury according to the experts in the field. Second, there are other forms of child abuse which are just as potentially damaging to a child which are not punishable by death. Both point to good reasons why the death penalty for child rape can be held to violate the 8th Amendment.

Posted by: Zack | Apr 18, 2008 11:17:34 AM

Inquiry about the permanence of those awful injuries was unseemly, IMHO.

Posted by: federalist | Apr 18, 2008 11:53:19 AM

federalist, are you really suggesting that a 20 year old hot, blond, big-titted teacher who has sex with a 16 year old male student is really committing a horrible "crime"? She should be thrown in prison for child rape? She should be stuck on a sex offender list for the rest of her life? Are you saying all "child rape" is equal such that this case is equivalent to the rape of a 7 year old?

There is simply NO guarantee that a "child" (a legal minor) will suffer irreparable harm from an adult having incercourse with said child. Some might suffer mental trauma, some might enjoy the hell out of it. Just because sex is deemed to be without consent doesn't really mean the "victim" didn't consent and want it to happen. In some cases, if the victim had been on the planet for one more week his smile could be taken at face value.

Posted by: bruce | Apr 18, 2008 12:58:54 PM

How is it unseemly to question whether the injuries the victim suffered were permanent when the state is arguing that they need the death penalty for child rape because of permanent injuries?

Are you saying it is unseemly for judges ever to question the prosecutors theory of a crime?

Posted by: Zack | Apr 18, 2008 1:40:01 PM

Zack: yes he is, because it's child rape, and even the mere suggestion that it's not the most damaging thing that could be done to a child is taboo and requires an apology.

Posted by: bruce | Apr 18, 2008 2:28:19 PM

Zack, the state is arguing that the permanent injury is psychological--anyone with a rudimentary knowledge of human anatomy knows that the injuries to those areas in a penile rape of a child often are not permanent. What the state's attorney was getting at by bringing this up was the absolute savagery of someone who could inflict such a wound on a child, permanent or not.

One would hope, of course, that judges would never be jaded about such conduct, but given Stevens' 30 odd years with dealing with murderers and reading the case files of some truly awful crimes and having the result of that be sympathy with the murderers facing the "big jab", I don't blame the state's attorney at all.

Posted by: federalist | Apr 18, 2008 4:10:24 PM

Federalist: Isn't the point, though, that the "savagery" you mention is subsumed by the actual offense? Aren't the injuries expected for someone who has been raped as a child? And isn't the state really trying to have it both ways, now that the statute covers oral sex offenses? What's the point of bringing up the injuries at all?

I also find the state's argument about psychological injuries dishonest. If that is the real harm, what is the argument for DP eligibility for those who rape newborns? Or the very young who will not be able to remember it ever happened? Where is the psychological damage?

This is really all about the "yuck" factor. We find the idea of sex with young children yucky and coercive, and potentially damaging to the child. I say potentially damaging because there is some evidence that it is adult reactions to the crime that hurt kids the most psychologically. I'm not saying we lift age of consent laws, but we should at least be honest about where we're coming from when we talk about the damage, here. It is offense specific...which makes death penalty eligibility troublesome.

Posted by: Alec | Apr 18, 2008 10:19:51 PM

I think that the state was talking about this specific case. The injuries were pretty bad here. I doubt every case has the degree of injury here.

As for the psychological damages, I think that you're too hung up on that. Certainly, the legislature can make a decision that it will protect children because, in general, it is damaging to children psychologically. And, just because newborns don't remember, does not mean that they were not hurt psychologically.

When you say the "yuck" factor, I think you aren't strong enough. Obviously, we think this activity sick and disgusting--but what I was getting at is also the depravity of this particular crime--he continued to engage in his act knowing the savage injuries he was then inflicting. Sick dude.

I well understand the policy reasons why this death for this crime is a bad idea, but I don't understand why anyone gives a second thought to killing this animal. I think too that the sexual abuse these people suffer in jail incentivizes the killing of child rape victims, and that is reason enough to stamp out prison rape.

Posted by: federalist | Apr 18, 2008 10:37:59 PM

If every child rape is savage and causes permanent injuries (whether mental or physical), then how does the prosecutor decide on which child rape cases to seek the death penalty? Answer: They'll ALWAYS seek the death penalty and respond to criticism by pointing out the "permanent damage" and saying they want to give the jury "all the options" so that the jury can decide whether death or life in prison should be imposed. So how does the jury decide? If it's ALWAYS a horrible brutal crime (it's not, like I said, 20 year old hot blond teacher having sex with young male student is not a brutal, harmful crime... the "victim" will have a smile on his face) and if permanent damage always results (again, it doesn't), how will the jury decide?

If the prosecution can legally seek the death penalty, they will. If juries find the defendant guilty, then they most likely will always give the death penalty.

Posted by: bruce | Apr 19, 2008 3:08:32 PM

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