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July 31, 2008

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:

July 31, 2008 at 01:43 PM | Permalink


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Perhaps the most well-respected name in constitutional law has joined the calls for a Kennedy rehearing. It's in the Wall Street Journal and here is the key portion:Defenders of the court's decision in Kennedy v. Louisiana would have it ignore [Read More]

Tracked on Jul 31, 2008 11:59:17 PM


Tribe seems to misunderstand the facts underlying the rehearing petition. Congress did not institute a death penalty for child rape for the UCMJ; the death penalty had already been there for years. Nobody knew about the 2006 law for a good reason - it was of no importance.

As with other proponents of rehearing, Tribe's real issue is with the merits of the original decision. It is improper to use a rehearing petition to rehash issues that have already been considered and decided. To quote Scalia's response to critics of Bush v. Gore, "Get over it."

Posted by: rn | Jul 31, 2008 2:26:00 PM

Tribe's point about discriminatory application of the death penalty to gays and lesbians seems incorrect. First off, no one doubts that a prosecutor can make precisely that distinction based simply upon the unarticulated biases of an anticipated jury. Indeed, the issue comes up routinely in deciding in states that have them whether or not to bring a hate crimes charge in addition to a simple murder charge.

Secondly, both federal and state law, for example, make the death penalty available for killings of public employees like police, firefighters, judges and post office employees, importantly including some people completely unrelated to the judicial process. Likewise, age of the victim (child or elderly) is frequently a consideration in death penalty sentencing as an aggravating or mitigating factor. In short, death penalty statutory law is awash in discriminatory considerations.

But, none of the particular distinctions made in death penalty statutory law regarding what constitutes capital murder from non-capital murder are believed to have constitutional statute. A state or the federal government can define aggravated murder that qualifies for the death penalty any way it wants, and this is done differently in different places.

In contrast, the disinction between murder and non-murder is hardly a distinction without a difference. Indeed, given existing constitutional capital punishment jurisprudence, it is not at all clear that a state death penalty that makes death an option in every murder case, without requiring the prosecution to prove aggravating factors apart from the crime itself, and without requiring that mitigating factors be absent, so long as juries had discretion in individual cases after hearing evidence from prosecution and defense cousel, would meet constitutional muster. For example, The United States Supreme Court in Penry v. Lynaugh and the United States Court of Appeals for the Fifth Circuit in Bigby v. Dretke have held that jury instructions in death penalty cases that do not ask about mitigating factors regarding the defendant's mental health violate the defendant's Eighth Amendment rights.

If the death penalty is unconstitutional for unaggravated murderm, a fortiori, it must be unconstitutional to do so for rape also.

Now, if one were to make a distinction between military law and non-military law, which I'm not sure is justified, the argument would be that the military death penalty for rape is justified on grounds similar to the civilian death penalty for treason and/or espionage (offenses for which executions have been conducted in the U.S. Conn in 1862 and the Rosenbergs in the 1950s for example, which were beyond the scope of Kennedy) -- it is an act that could put your fellow soldiers at grave risk of being killed (in this case due to retalitation and loss of support of locals) and predictiably causes the deaths of fellow soldiers in a way that experience shows is likely, but that is hard to prove in an individual case beyond a reasonable doubt. The risk of this kind of retaliation is not illusory. We have seen it in Iraq in this decade.

To that end the most recent comparable case in U.S. military history that could act as a precedent would be the execution of Eddie Slovick on January 31, 1945 for desertion during WWII in Sainte-Marie-aux-Mines, France, presumably under a similar line of reasoning.

In contrast, since civilian child rapes do not predictibly lead to deadly retaliation against uninvolved non-criminals, the way that a rape of a child by a soldier when deployed often will, a death penalty in the civilian context lacks the same justification.

To the extent a prohibition on execution for child rape is informed by the 14th Amendment incorporation of the 8th Amendment (which would govern state but not federal prosecutions for child rape, and hence apply in Kennedy but not the military case) is is worth noting that a principal evil that the Reconstruction amendments sought to address was the lynching of freedmen in the reconstructed South. Those lynchings frequently alleged the rape of a minor.

Posted by: ohwilleke | Jul 31, 2008 2:39:31 PM

P.S., regarding "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", I hear that they have twelve step programs for this kind of thing.


Posted by: ohwilleke | Jul 31, 2008 2:50:25 PM


Your point is very well taken. Although I agreed with the result in Kennedy, I felt it was missing the sort of analysis that you include in your post. If murder is inherently more serious than rape, and if all murders are not sufficiently serious to merit the death penalty, then how can rape ever merit the death penalty?

Frankly, I had assumed that Coker had decided this issue 30 years ago. Having read that opinion many times, I find it very hard to discount as dicta Judge White's repeated claim that rape cannot be a death penalty offense because it does not involve the taking a human life.

Posted by: rn | Jul 31, 2008 6:29:19 PM

I posted this at the Sex Crimes blog but I will add it here too.

"To my mind they are backing the court into a corner. The political pressure can't move the court; it just makes it look bad. If they did hold a rehearing and changed their mind; the SC would look even worse. So I don't see the social benefit that comes from having the debate. It was a minor mistake that people are using to ding the court with. But the real losers here is the overall legitimacy of the system."

The truth of the matter is that the petition for review makes the situation worse, not better. It is an unnecessary escalation that all friends of legal system should be opposed to.

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