Sentencing Law and Policy

First capital child rape charge under new Florida law results in LWOP plea and sentence

Nearly a year ago, Florida enacted a new law making certain child rapes a capital offense, and I asked in this post: "With new Florida law authorizing death penalty for child rape, how might SCOTUS get to reconsider Kennedy?".  Two months ago, as detailed in this  post, Florida prosecutors filed court documents stating its intent to seek the death penalty against Joseph Andrew Giampa after he was indicted on multiple counts of sexual battery on a child under age 12. 

I reacted to this potentially historic capital case by speculating about the possibility of a plea deal to take the death penalty off the table, wondering in particular if prosecutors would agree to such a deal.  This local article reports that such a plea deal was made, and an LWOP sentence was entered last week:

A Leesburg man has been sentenced to life in prison for forcing a young girl to engage in sexual acts.

Joseph Andrew Giampa, 36, through his defense attorney, conveyed an offer to serve the rest of his natural life in prison.  At the request of the victim’s family and with the interests of the child victim in mind, the Fifth Judicial Circuit State Attorney’s Office agreed to this resolution.  Under this agreement, Giampa will spend the remainder of his life in prison without the possibility of parole.

“Resolution in less than 100 days is proof that Florida’s capital punishment statute for sexual battery of children is effective,” commented Fifth Judicial Circuit State Attorney Bill Gladson.  “By passing this law, the Florida legislature and the governor have sent a message that Florida has zero tolerance for those who prey upon our most vulnerable and that the punishment will be certain, swift and severe.”

Last year, investigators found a video on Giampa’s laptop of a female juvenile victim being recorded by an adult man, later identified as Giampa, holding the camera and talking to her.... 

Giampa was indicted by a grand jury in December 2023 for six counts of sexual battery upon a person under 12 years of age and three counts of promoting a sexual performance by a child.  Shortly after Giampa was indicted, Gladson filed a notice of intent to seek the death penalty in the case pursuant to Florida Statutes 794.011(2)(a) and 921.1425, both of which pertain to the death penalty regarding sexual battery as a capital felony.

I am not too surprised that this case was resolved through an LWOP plea deal, which is not uncommon in capital cases when there is no dispute over guilt.  I am also not surprised that the victim’s family here was eager to have this case resolved through a plea deal rather than risk having the young rape victim grow up with her rape and rapist the center of legal appeals and debates for years.  So now we are back to waiting and wondering when and how Florida will secure a child rape death sentence that could provide an opportunity for SCOTUS to reconsider its Kennedy ruling that such a sentence violates the Eighth Amendment.

Prior related post:

• With new Florida law authorizing death penalty for child rape, how might SCOTUS get to reconsider Kennedy? 
• Possible Florida test case for new capital child rape statute now in the works 

With new Florida law authorizing death penalty for child rape, how might SCOTUS get to reconsider Kennedy?

Fifteen years ago, in Kennedy v. Louisiana, 554 U.S. 407 (2008), the US Supreme Court decided, by a 5-4 vote, that the Constitution prohibits a state from imposing the death penalty for the crime of child rape.  In the words of the majority opinion: "Based both on consensus and our own independent judgment, our holding is that a death sentence for one who raped but did not kill a child, and who did not intend to assist another in killing the child, is unconstitutional under the Eighth and Fourteenth Amendments."

In Florida, a multi-month effort to push back on this doctrine culminiated today in the signing of a new law to permit sentencing a child rapist to death.  Here are the basics from this USA Today piece:

Florida Gov. Ron DeSantis has signed into law a measure making child rape subject to the death penalty, defying a United States Supreme Court ruling. "In Florida, we stand for the protection of children," DeSantis said at a Monday press conference in Brevard County. "We think that in the worst of the worst cases the only appropriate punishment is the ultimate punishment."

But, in 2008, U.S. Supreme Court justices issued a 5-4 ruling barring states from imposing the death penalty for the rape of a child, when the crime does not involve a child’s death. The court rules that applying the death penalty in such cases would amount to “cruel and unusual punishment.”

DeSantis, though, has said he thinks the current conservative-majority U.S. Supreme Court may be willing to revisit the earlier ruling. "We think that decision was wrong," he said at the press conference. "This bill sets up a procedure to be able to challenge that precedent."

I see that the new Florida death penalty law, House Bill 1297, states expressly that "a sentence of death shall be imposed under this section notwithstanding existing case law which holds such a sentence is unconstitutional under the Florida Constitution and the United States Constitution."  I suppose that provision helps to provide a means for a test case to emerge in which lower Florida (and federal habeas) courts would presumably feel obligated based on the Kennedy precedent to strike down a capital child rape sentence, but then Florida would keep appealing in the hope of getting the Supreme Court to take up the case and overrule Kennedy. 

In addition to wondering about the facts of any "Kennedy test case," I cannot help but wonder how long it might take to get to SCOTUS.  There are, surely, hundreds of cases of young child sexual abuse in Florida with the child under age 12 as required by this law.  But, while there will be death eligible cases right away, we would need a prosecutor to charge under this new law and a jury to return a death verdict and recommended sentence before the appeals get going in earnest.  And the appeals would surely take quite some time before SCOTUS would even have a chance to take up a challenge to Kennedy.

Notably, three of the four Justices in dissent in Kennedy are still on the Court (Justices Thomas, Alito and the Chief), while none of the Justices in the Kennedy majority on still on this Court.  I suspect Justice Gorsuch would be a vote to reverse Kennedy, and that Justices Sotomayor, Kagan and Jackson would not be.  I would guess that one, and perhaps both, of Justices Kavanuagh and Barrett would, perhaps on originalist grounds, reverse Kennedy.  But when might they get the chance and are many of the Justices really eager to take this up?  

Might horrific Jaycee Lee Dugard case have led SCOTUS to permit death penalty for child rape?

The question in the title of this post is prompted by this new commentary by Charles Lane for the Washington Post, which is headlined "The justices and Jaycee Dugard." Here is how the piece starts and ends:

A Stolen Life, Jaycee Lee Dugard’s harrowing memoir of sexual torture and confinement at the hands of Phillip Garrido, has hit the top of Amazon’s best-seller list. I read it, astonished at her courage and her eloquence — and disgusted at the crimes Garrido, on parole for a previous rape, committed against Dugard for years, starting when she was 11.

I also wondered how history might have been different if Dugard had escaped from her 18-year hell before the Supreme Court’s 2008 decision in Kennedy v. Louisiana, instead of a year after it.  This was the case in which the court voted 5-4 to ban the death penalty for raping a child.  No future Phillip Garrido need ever fear execution, though many who read Dugard’s book will agree with me that he would richly deserve it.

At the time, the majority opinion by Justice Anthony M. Kennedy struck me as a mixed salad of moralizing and debatable assertions.  Post-Dugard, it’s even less persuasive. ...

To be sure, Phillip Garrido, now sentenced to 431 years, would never have faced capital punishment in California even prior to Kennedy v. Louisiana, because the state didn’t allow it except for murder.  (His accomplice wife, Nancy Garrido, is also in prison).

And Justice Kennedy — joined by Justices John Paul Stevens, Stephen A. Breyer, David H. Souter and Ruth Bader Ginsburg — was not wrong to worry about allowing capital punishment for any rape, given this country’s sorry history of racially-biased sex-crime prosecutions.  The court has rightly ruled that the death penalty should be limited to the “worst of the worst”; reasonable people can debate whether non-lethal crime belongs in that category.

But that’s the point: These are as much policy issues as constitutional ones, and the court was wrong to trump the people’s representatives, especially on such a flimsy factual foundation.

If anything, there’s a “national consensus” in favor of the death penalty for raping a child. A poll after the court’s ruling showed that only 38 percent of the public agreed with it, while 55 percent disagreed.

A major presidential candidate said that “the rape of a small child, 6 or 8 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."

Barack Obama was exactly right.

Media reports on public support for Atkins, Graham, Heller and Roper

As detailed in this new press story, which is headlined "Public backs most high court rulings," a recent report suggests that the general public is generally supportive of the Supreme Court's recent pro-defendant Eighth Amendment rulings and pro-gun Second Amendment ruling.  Here are snippets from the press story:

The Supreme Court shifted to the right four years ago when conservative Justice Samuel A. Alito Jr. succeeded moderate Sandra Day O’Connor.  And if American public opinion is the measure, the Roberts court has made the right call in most of its major decisions since then, according to a recent study that asked respondents about cases.

A strong majority favored conservative rulings that prohibited “partial-birth” abortions, upheld a homeowner’s right to have a gun, and required voters to show photo identification.

The majority also supported liberal rulings that said environmental regulators could restrict the carbon pollution linked to global warming and that struck down state laws that put juvenile criminals in prison for life without hope for parole....

Columbia University law professor Nathaniel Persily said the court historically has been “to the left of the public” on issues that attract attention, such as crime, religion and affirmative action. Along with Harvard political science professor Stephen Ansolabehere, he set out to survey the public’s view of actual cases.  Their Constitutional Attitudes Survey asked more than 1,600 respondents in 2009 and 2010 about issues that were before the Supreme Court....

Overall, the court’s current and nuanced position on the death penalty and abortion is in line with public opinion, the survey found.

A majority supports the death penalty for murder, and the court has upheld capital punishment.  The public also agreed with the rulings that ended the death penalty for those who are mentally handicapped (in 2002) and for those under age 18 at the time of their crimes (in 2005).

On abortion, the public supports –- by a 61 percent to 38 percent majority –- the Roe v. Wade ruling that set forth the right to an abortion, but it also supports regulations and restrictions, including limits on late-term abortions.

At Nathaniel Persily's webpage, I found what appears to be the July 2010 report on the Constitutional Attitudes Survey upon which this press article is based.  This 113-page "Constitutional Attitudes Field Report" (which is available for download below) is a bit hard to sort through, and I was not able to find the results showing public agreement with the 2010 Graham LWOP decision.  Also, though not reported by the press, it appears that the survey also revealed strong disagreement with the Supreme Court's 2008 Kennedy decision prohibiting the death penalty for child rapists.

Download Constitutional Attitudes Field Report_Client-1

UPDATE:  Via a helpful e-mail, Professor Persily has clarified where the Graham results can be found and what they showed:

We asked the following question (page 99 of the codebook):

In general do you agree or disagree with the following statements: A state should be allowed to sentence for life in prison a person under 18 years of age for armed burglary.

Stongly agree 10.9%

Agree Somewhat 24.6%

Disagree Somewhat 38.0%

Strongly disagree 23.4%

Refused to answer 3.1%

Oklahoma legislature still eager to make child rape a death penalty offense

This new local article, whcih is headlined "Okla. panel OKs death sentence for child rapists," spotlights that some legislators continue to want to resist the Supreme Court's 2008 Kennedy ruling declaring unconstitutional Louisiana's capital child rape law.  Here are the basics:

Repeat sex offenders convicted of raping a child 6 years old or younger would be eligible for the death penalty under a bill approved Monday by a House committee, despite a 2008 U.S. Supreme Court ruling that a similar law was unconstitutional.  The bill by Rep. Rex Duncan, R-Sand Springs, was among a host of measures overwhelmingly approved by the House Judiciary Committee that either create new felony crimes or enhance existing criminal penalties.

Duncan, a former prosecutor who chairs the committee, said he believes the Supreme Court erred in its decision and that his proposed law could be upheld by the new members of the court. "I think they did get it wrong," Duncan said of the Supreme Court's 5-4 decision, "and I would not be surprised if other states revisit their statutes on this issue."... Duncan said the intent of his bill is to target child rapists who already have a previous conviction for a violent sex offense.

"If that's what the bill says, the bill is facially unconstitutional," said Randall Coyne, a constitutional law professor at the University of Oklahoma.  "The court can change its mind, and it often does ... but I doubt the court would overturn so recent a decision."

State Rep. Ryan Kiesel, the lone opposing vote against the measure, said he agrees child rapists should be handed harsh penalties but questioned the wisdom of a measure that clearly violate a Supreme Court ruling.

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

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

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

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

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

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

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

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

Yale LJ Pocket Part piece on Kennedy rehearing denial

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

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

Kennedy (lack of) rehearing wrap-up and the future of criminal justice federalism

Over at SCOTUSblog, Lyle Denniston puts a final spin on the Supreme Court's rejection of the rehearing petition of Louisiana in the Kennedy child rape case with this post titled "Analysis: The death penalty calculus is unchanged."  And How Appealing has helpfully collected all the major media coverage of the conclusion of the Kennedy case here.

As regular readers know, I am a big fan of criminal justice federalism and thus I remain disappointed that the Supreme Court's work in Kennedy now categorically prevents states from ever experimenting in any way with the death penalty for any kinds of child rape offenders.  But I am encouraged to discover, as noted in this AP article, at Governor Palin is talking up federalism principles when discussing the work of the Supreme Court and her concerns with Roe v. Wade:

"I think it should be a states issue not a federal government, mandated, mandating yes or no on such an important issue," said Palin.... "I'm in that sense a federalist, where I believe that states should have more say in the laws of their lands and individual areas," she added.

If legal issues arise again in tonight's VP debate, I hope Governor Palin will keep talking up federalism principles.  Indeed, given her admitted use of marijuana when she was younger, I would really like to see how she might respond to a question about federalism, Raich and state authority to decriminalize medical marijuana. 

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

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

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

Louisiana files final Kennedy rehearing petition brief

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

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

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

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

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

Some related posts the Kennedy ruling and a possible rehearing:

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

What will (or should) SCOTUS do on the Kennedy rehearing petition?

Among lots of good new stuff at StandDown Texas Project is this interesting op-ed from Peter Verniero, who served as a New Jersey Supreme Court justice and state attorney general, on the Kennedy child rape case.  The piece is headlined "To maintain its integrity, the court must own up," and here is how it starts and ends:

There is something almost sacrosanct about recitations of law contained in decisions of the U.S. Supreme Court.  Lower-court judges, attorneys, law professors and everyday citizens depend on those statements in myriad ways even when disagreeing with the court's conclusions. If for no other reason than that, the court should reconsider and correct an opinion it filed at the end of its last term, Kennedy vs. Louisiana....

[H]ow one feels about the death penalty is irrelevant to whether the high court should reconsider its Louisiana decision.  At stake is not a policy debate but the reputation of the judiciary.  If court decisions are to retain legitimacy in a free society, they must be based on accurate readings of the law. From that perspective, unless or until it is corrected, the Louisiana opinion will suffer under a cloud of doubt....  Whether the court ultimately reverses its decision will depend on the court's evaluation of a correct survey of the law. Until that happens, we will be left wondering whether its divided Louisiana ruling is entitled to respect based on an accurate review of the law or merely because the court decreed it to be so.

It is unclear whether the author of this op-ed would be content if the Justices just amend the Kennedy opinion by adding a footnote discussing the (lack of) impact of military law on the analysis.  I suspect that the adding of such a footnote through an amended opinion is all that the Supreme Court will ultimately do in response to Louisiana's rehearing position.  And perhaps this is all the Court should do, since the flaw of the decision does not rest in its failure to discuss military child rape law, but rather in five Justices' clear desire to use constitutional doctrine to block any expansion of the death penalty in American states. 

In short, as I have explained in prior posts noted below, I consider the Kennedy decision to be misguided as a matter of constitutional law and policy.  But, unless someone in the Kennedy majority is prepared to reconsider more fundamental aspect of this recent ruling, I doubt that the military law kerfuffle should (or will) change the outcome.

So, dear readers, after I have here reiterated my Kennedy views and predictions, what do you think SCOTUS will (or should) do in response to Louisiana's rehearing position?

Some related posts the Kennedy ruling and a possible rehearing:

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

Deep thoughts about Kennedy while rehearing motion pending

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

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

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

Additional briefing in Kennedy child rape rehearing debate

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

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

Is SCOTUS really thinking about rehearing Kennedy child rape case?

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

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

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

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

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

Some related recent posts on a possible Kennedy rehearing:

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

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

Add Prof. Tribe to those urging rehearing in Kennedy

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

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

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

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

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

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

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

Some related recent posts:

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

Counting to five in the Kennedy rehearing debate

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

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

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

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

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

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

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

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

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

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

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

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

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

Some related recent posts:

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

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

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

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

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

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

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

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

Some related recent posts:

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

Cross-posted at Prawfs

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

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

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

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

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

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

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

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

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

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

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

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

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

The international dogs that did not bark in Kennedy

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

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

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

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

Some related recent posts:

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

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

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

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

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

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

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

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

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

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

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

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

Some related recent posts:

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

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

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

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

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

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

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

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

Some related recent posts:

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

Washington Post editorial supports rehearing in Kennedy child rape case

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

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

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

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

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

Some related recent posts:

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

Could all the mistakes in Kennedy be corrected?

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

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

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

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

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

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

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

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

The leaders of both major parties were quick to oppose Kennedy — presumably not out of a desire to contravene society’s “standards of decency” in the middle of a presidential race.  At a press conference in the wake of the holding, Barack Obama commented: “I think that the rape of a small child, six or eight years old, is a heinous crime, and if a state makes a decision that under narrow, limited, well-defined circumstances the death penalty is at least potentially applicable, that does not violate our Constitution.”  So even the most liberal member of the Senate does not have a sense of decency as highly evolved as the Court’s.

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

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

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

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

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

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

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

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

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

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

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

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.

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:

• Will (and can) "outraged" politicians really do anything about Kennedy?
• Culture of life trumps democracy and state experimentation in Kennedy
• Some first-cut reactions to Justice Kennedy's work in Kennedy
• Kennedy child rape case blog archive

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:

• Culture of life trumps democracy and state experimentation in Kennedy
• Some first-cut reactions to Justice Kennedy's work in Kennedy
• Kennedy child rape case blog archive

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.

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, infra.  It 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?

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:

• Some sober reflections on emotions and the death penalty
• Reflections on reflections on emotions and the death penalty

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.

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.

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?