Kennedy v. Louisiana:
Based on a quick skim of the briefs in Kennedy v. Louisiana, the forthcoming Supreme Court case on whether the Eighth Amendment prohibits the death penalty for the rape of a child, my impressions are prettty similar to those that Mike Mannheimer made in a post a week ago over at CrimProf Blog:
For results of a VC reader poll on attitudes toward the desirability and constitutionality of a state law imposing the death penalty for rape of a child, see here.
The thing that struck me most after reading the briefs . . . 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.Of course, whether any of this matters depends on whether Eighth Amendment doctrine should be taken seriously -- something that unfortunately is always an open question when it comes to the Supreme Court's Eighth Amendment decisions.
First, in Kennedy, it is the State that is relying heavily on social science data to prove the irrevocable harm to the victim of child rape, to distinguish the case from Coker v. Georgia, which holds that the death penalty is unconstitutionally disproportionate for the rape of an adult woman. One section of the Respondent's brief is replete with references to articles from social science journals discussing all the harms caused by child rape, many manifesting themselves later in life. This is reminiscent of the social science data relied upon so heavily by the defendants in Atkins and Roper to support the proposition that the mentally retarded and juveniles, respectively, are, as a class, less culpable and deterrable than other offenders.
Second, only six States capitalize child rape, a number that ordinarily would greatly help the defendant in showing that there is a national consensus against the death penalty for child rape. But, as the Respondent points out, Atkins and Roper both emphasize not simply the raw numbers in determining whether there is a national consensus, but "the consistency of the direction of change." In Atkins and Roper, the defendants both successfully argued that, even though only 30 of the 50 States -- and only 18 of the then-38 death penalty States -- banned the death penalty for the mentally retarded and juveniles, respectively, "the consistency of the direction of change" showed an emerging national consensus because a number of States had recently enacted such bans.
In Kennedy, the State is able to flip this logic to their advantage by showing that all six States that capitalize child rape have done so within the last dozen years or so. Thus, "the consistency of the direction of change" in this context shows the lack of any national consensus because more States continue to capitalize child rape, breaking down whatever national consensus might otherwise exist. Moreover, while the defendants in Atkins and Roper were able to emphasize that the numbers of States enacting such bans were even more significant given the relative unpopularity of legislation that could be seen as "soft on crime," the State here can argue that the number of States capitalizing child rape is all the more significant in the face of the fact that many State legislators likely read Coker as banning the death penalty for all rape.
For results of a VC reader poll on attitudes toward the desirability and constitutionality of a state law imposing the death penalty for rape of a child, see here.
I think that at least the Missouri Gov. amici brief does argue this or something similar.
To answer your question: it doesn't matter.
But hundreds of people will write briefs, staying up late, hoping that their brainpower will convince a judge on the court and that their winning argument will save the day.
It won't. But lawyers convince themselves that it DOES matter, and convince themselves that their arguments won the day (instead of Justice Kennedy or Ginsberg deciding the case because they need to keep up with European snobs), because to admit the truth would be to admit that their arguments, time, and brainpower are completely worthless.
the issue of whats "cruel and unusual" is such a subjective call that it almost begs for a 5-4 upholding the gov.
I don't understand this. What does this mean?
Arguments, time, and brainpower can't overcome the justices' own opinions and prejudices. Especially when it comes to the BAD justices with the swing votes.
That's what I read it to mean.
Justices make up their minds based on their own emotional response to the Question Presented, and then they pick and choose the logical arguments that best support their emotional response, and that becomes the opinion.
For questions involving intricate webs of precedent, the Court must take care to resolve them in such a manner as to promote consistency (to protect its own legitimacy). In those cases, logical arguments can sometimes carry the day.
But for an 8th Amendment decision, which is just a test of how they feel about certain social issues, the logical arguments don't matter at all because consistency is irrelevant. The parties are making an emotional appeal to the justices. Nothing more.
This case is going to come down to A.K.'s personal views about the death penalty. Law, precedent, logical arguments--throw all that out the window. This case will come down to the personal preferences of a man most famous for his fickleness. Luckily, Sam Alito is apparently keeping A.K. on the straight and narrow.
What do you have against Europeans?
American yahoos
The professional psychological and psychiatric professions have indeed taken strong positions on issues ranging from abortion to the death penalty basing their opinions on supposed social science evidence. But that evidence if often overstated and biased.
Has the Court ever said that "cruel and unusual" imposes a proportionality requirement? Or do these cases really reflect the Court's discomfort with the death penalty in general and its unwillingness to extend the punishment into new realms?
Best reason as a matter of policy, or best reason as a matter of constitutional law?
A legitimate policy concern, but I can't imagine it's a constitutional one.
If those are the arguments being made in the Kennedy case (and I do enjoy the irony of the name), he will have little choice but to either side with the state or essentially declare that the test he laid out in Roper is a one-way ratchet, which can only be used to find more things unconstitutional, but can never go back the other way.
As I see it, the burden is on the defendant to show a national consensus against the practice. So the State would not have to make the difficult showing of a national consensus in favor of the practice, but the somewhat easier showing of no national consensus against it. The "consistency of direction of change" argument helps them do that. That was the point I tried to make in my original post.
Gee, I hope Obama has a "relatively close" win like that this November.
You queried "whether Eighth Amendment doctrine should be taken seriously -- something that unfortunately is always an open question"
Your skepticism about the role of doctrine in this area seems well founded. The Eighth Amendment text is radically indeterminate. Presumably its drafters could have specified what punishments they meant to rule out; but they chose to be open-ended instead. So asking the judiciary to decide what constitutes "cruel and unusual punishments" amounts to administering an ongoing Rorschach test.
So we agree on the realities. The more-interesting issue is whether this situation is a bug or a feature in the system. Your use of 'unfortunately' suggest that it's a bug. I'd like to understand why.
Isn't there's some merit to having a group of carefully-chosen people, detached from the turmoil of day-to-day politics, who occasionally say (in effect) that we've consulted our consciences and this just goes too far [drawing and quartering, flogging, executing minors, whatever]? Even though they will undoubtedly get some of those calls wrong, in both directions.
I think the death of doctrine is *far more* apparent in the Court's abortion jurisprudence.
I am a judge in a national moot court competition tomorrow at the University at Buffalo Law School, and Kennedy v. Lousiana is the issue. If any VC readers have questions they would like me to explore with the competitors let me know. Attached below is a website that has links to the briefs on Kennedy submitted by the competitors....should be interesting.
http://wings.buffalo.edu/law/bclc/moot.htm
Oh, to be clear, I'm not saying the text is indeterminate. I'm saying that based on past performance, there is good reason to think the Justices do not follow the doctrinal tests that they have created to implement that text.
Isn't there's some merit to having a group of carefully-chosen people, detached from the turmoil of day-to-day politics, who occasionally say (in effect) that we've consulted our consciences and this just goes too far . . . ?
This is an interesting idea, but who would these people be? We would need to find a group of carefully-chosen people who are detached from the turmoil of day-to-day politics. I can't think of any such group, but then I'm always open to suggestions.
So capital child rape wouldn't deter would-be child rapists from committing child rape in the first instance, but capital murder effectively deters child rapists from disposing of their victim? This argument doesn't wash.
I think capital child rape is a horrendous idea for a number of reasons - mainly evidentiary, given the unreliability of child witnesses and the circumstances under which such rapes usually occur - but I don't think this particular argument has any merit.
Here are some of the questions I asked during a moot with my students. These may be somewhat cryptic, as I took them directly from my notes, but I hope you can make some use of them:
A. Questions for Petitioner
1. Why cannot a State deem child rape a worse crime than adult rape?
a. More morally reprehensible – calls for greater retribution
b. More dangerous – calls for greater incapacitation
c. Harder to detect – calls for greater severity in order to effect deterrence
2. Do you concede that dp is constitutional for other non-homicide crimes, such as "treason, espionage, air piracy, and mass drug importation?” (p.26 of Petitioner's Brief)
3. Isn’t your point about a national consensus in some tension w/ your point about Coker – the supposed national consensus against dp for child rape may be skewed precisely by the fact that many State legislatures read Coker exactly as you read it?
4. In Atkins and Roper, we emphasized “the consistency of the direction of the change” – doesn’t that same factor cut against your position here?
5. True that La. is only State allowing dp for child rape where offender has no prior offenses, but in Coker, we said that prior offenses irrelevant – focused on conduct leading to capital charge.
6. Why isn’t this case governed by Lowenfield v. Phelps?
a. Not all homicides are death eligible – there must be an aggravator
b. Not all rapes are death eligible – there must be an aggravator
7. Does the statute adequately narrow the class of death eligibles given that it now capitalizes rape of someone under 13 rather than 12?
B. Questions for Respondent
1. How do you get around the reasoning of Coker – that dp is disproportionate to a non-homicide offense?
2. Wouldn’t Coker have come out the same way if the question had been whether dp was disproportionate for child rape
a. Objective portion of the opinion
i. Only 3 of 50 States allowed for it
ii. Fewer than 8 States in Enmund that allowed dp for minor participant in felony murder
b. Subjective portion of opinion emphasizes that offender has not taken a life
3. One possible argument is that even if Coker is best read as forbidding dp even for child rape, 8A means something different now than it did in 1977 – do you make that argument?
4. What is your response to the argument that Louisiana stands alone b/c every other state to capitalize child rape does so only if the offender has prior convictions?
5. What is your response to the argument that child rape prosecutions engender special risks of wrongful conviction, as we said in Atkins and Roper?
6. What is the age cut-off for child rape?
a. Georgia – under 10
b. Louisiana – under 13
c. Montana – under 16
d. Oklahoma – under 14
e. South Carolina – under 11
f. Texas – under 14
Perhaps we went past each other a bit.
I'm not saying the text is indeterminate. I'm saying that based on past performance, there is good reason to think the Justices do not follow the doctrinal tests that they have created to implement that text.
In practice, the justices keep revising past doctrinal tests, precisely because the Amendment's indeterminate text invites them to follow their consciences. And the dictates of conscience don't reduce well to agreed rules. So they keep revising. That's inherently their job, in practice and (I'd argue) in theory.
This is an interesting idea, but who would these people be? We would need to find a group of carefully-chosen people who are detached from the turmoil of day-to-day politics. I can't think of any such group ...
In fact, we have such a group built into our system. They actually make these decisions by (in effect)consulting their consciences. And they're as insulated from day-to-day politics, by structure and tradition, as any such group reasonably can be. That the insulation is only imperfect is another of life's little imperfections.
My question to you was (and is)--Why do you think that it's "unfortunate" for such a group to be playing such a role?
My take on this is that in the hierarchy of factors established to determine what a consensus is, the "direction" of change was less important than the the absolute number of states that adopt a certain position. Of course, there's no such statement in the decision itself, so who knows? Furthermore, a simple majority should not be considered a consensus--my students generally center on 40 or more states, and I suppose that sounds right on a gut level.
Atkins is a mess; an undergraduate can poke holes in the empirical reasoning of the argument within five minutes of finishing the opinion. That said, there has to be some attempt by the Court to find indicators of such a consensus. Isn't this sort of argument, as poor as it is, superior to a simple declaration that X is no longer acceptable? Moreover, what is the alternative to Trop v. Dulles and the evolving standards of decency jurisprudence? Even Scalia has said that he could not support an originalist version of the 8th amendment, and I suspect most other federal judges couldn't abide by the consequences of that decision either.
Now, that doesn't make these people less dangerous to society. And it doesn't mean that there aren't a ton of people who have the same urges to some degree who do not act on them. And, finally, it doesn't mean that every child rapist has a psychological problem that is very difficult to control.
But overall, despite the tremendous harm that child rape does, there's still a diminished moral blame for someone who is "sick" (in every sense of the world). I'm not saying this sickness should get them off of any responsibility for their actions - that trip down the slippery slope has far too many problems. But life in prison completely removes this person from society, and at least serves as a decent deterrent to people who are not exactly working off their "logos" in the first place.
Furthermore, it appears the judicial system is horribly equipped to determine the mental capacity, and otherwise seperate out those who acted on impulses they wished to control, acted on impulse without any concern for their acts, or acted purely for some other malicious reason.
And if the Constitution has *anything* to say about the *clsss* of people (juveniles, mentally ill, mentally incapacitated, etc) who may receive punishment (which I agree is a contested question, though one settled as a matter of precedent), then this type of judgment falls into that question.
Who do you have in mind? Professors? We really don't have that kind of power.
I am also curious as to whether those people who believe that the Eighth Amendment means whatever it meant in the 18th Century believe that a constitutional amendment may not as a matter of course refer to future standards of decency.
That is, if the Eighth Amendment was itself amended to say/clarify "cruel and unusual are given a meaning as those terms are understood over time," what should be the constitutional effect?
Oh thank God :)
To quote Learned Hand, "For myself it would be most irksome to be ruled by a bevy of Platonic Guardians, even if I knew how to choose them, which I assuredly do not."
Anyway, I beat this issue to death in the debate with Ilya a few weeks ago, so if you want more just read the thread.
Do you dare question that you would be better off if law professors made all the rules in society? But we're so smart and all. Just trust us -- we will take care of you, cradle to grave.
It would be far more intellectually honest if Justice Kennedy just said he was making a gut-call.
I agree wtih this and would like to add rape shield laws and the old 2% canard (only 2% of rape accusations are false) to that fine list.
As far as the constitutionality of such a statute, I do not buy the proportionality arguments or the consensus arguments.
But I am torn, the actual innonence problem scares me. As a matter of policy, I think a singal conviction for child rape is not enough, at least in a he-said, the child-said situation.
Are you people so daft not to realize the answer staring you right in the face? VOTERS! Put the law to a vote, either by referendum, or making it a campaign issue.
Last I checked, this was a democratic country. If it is widely known that a Court interpreting the 8th Amendment will not rely on legal doctrine, but instead will substitute its own preferences, then the decision should rest with the people and not the Court.
The people are insulated from day to day politics, they make decisions based on their consciences, and their common sense is better than any Judge.
Policy of course.
I think a good rule of thumb is that a "national consensus" cannot mean any less (but might mean more) than 75% of the States -- the number required to ratify a proposed amendment to the Constitution.
I wonder if any of the justices might conclude that this defendant is factually innocent and let that color their thinking.
Seriously, though, I'm sure there is data on the number of death penalty convictions under these laws. My impression is that it'd be very small, otherwise we'd hear about it more often.
I haven't done a lot of digging around on this, but I did notice, while poking around in early sodomy laws, that Maryland's 1809 reforms (and I think generally downward on penalties--sodomy was reduced from capital punishment) includes this:
I'm not a supporter of the death penalty, mostly because it lacks the undo feature if we discover "whoops." But the notion that rape just isn't serious enough of a crime to merit execution is crazy, and it is definitely not a constitutional argument.
and why would gender have any relevance.
fwiw, i can see an argument (there is AN argument) for age being an issue. age is an issue in all sorts of legal stuff: age of consent, age to drink, age of majority.
but gender shouldn't be. there is no reason why rape of a woman should be treated ANY differently from rape of a man. period. you can argue there's a moral difference, but there clearly should not a LEGAL difference
the same is true of domestic violence. in reality, MINOR assaults are more commonly committed by females upon males than the other way around. i am referring to pushes, slaps, etc. heck, the vast majority of guys i know admit to having been slapped by a girlfriend/spouse at LEAST once in their life (2 times myself). it is much rarer for the reverse to be true (a canadian study i read once confirmed this). this is only true for MINOR stuff. when it comes to more serious asaults (especially resulting in injury), men are clearly far more often the perps.
but the law should not treat the offense any differently depending on gender. personally, from a moral point fo view, there is a difference imo. i don't think it's justified for a man to strike a woman. i do think it's not a problem if done by a woman to a man in certain circ's. but that's morals, not law.
If you oppose the death penalty, you dont think any crime is serious enough to merit execution. You can oppose the death penalty and believe some people "deserve" to die. But if your worries about executing innocent people (which is unavoidable) are enough to make you oppose the death penalty, the seriousness of the crime is immaterial.
Those details aren't quite right--you've conflated two different phone calls--and the defendant's briefs have drawn other significances from those facts. The defendant reported the rape to the police as such, so it's hard to find "profound insensitivity." (When he made the "become a lady" remark he was asking his boss for the morning off. I don't know what on earth I would say in such a circumstance.)
When the police talked to her, the victim initially gave a detailed account of being raped by neighborhood teenagers. It took twenty months of state-mandated, prosecutor-supervised "counseling" for her to name her stepfather--whom the authorities suspected based on the phone calls--as the rapist, an accusation her mother (the defendant's husband) has never supported.
Look, there's no point in retrying the case here. We know the jury found the defendant guilty beyond a reasonable doubt. But I wonder if any of the justices will be bothered by the possibility of factual innocence and make some sort of case-specific ruling? This case particularly brings up the witness unreliability/recovered memory issue.
That, to me, is by far the strongest argument against the death penalty, and always has been.
Notably, though, prison sentences do not have an undo feature, either. If someone spends their life in jail, we don't give them their years back (or even compensate them for the wrongful incarceration, in most cases). We get the psychological benefit of setting the person free, and we stop the obvious harm propspectively, but in my experience this is much much more likely to happen with someone on death row.
I agree that the detailed review process for death row appeals does make it more likely that mistakes and abuses will be uncovered. Still, I suspect that a survey of most people released after ten years in prison that asked, "Would you rather have been executed ten years ago?" would find that ten years in prison was better than execution.
Notably, though, prison sentences do not have an undo feature, either. If someone spends their life in jail, we don't give them their years back (or even compensate them for the wrongful incarceration, in most cases).
We should, if there is any evidence of negligence or intentional misconduct by those involved in obtaining the conviction.
We get the psychological benefit of setting the person free, and we stop the obvious harm propspectively, but in my experience this is much much more likely to happen with someone on death row.
I agree that the detailed review process for death row appeals does make it more likely that mistakes and abuses will be uncovered. Still, I suspect that a survey of most people released after ten years in prison that asked, "Would you rather have been executed ten years ago?" would find that ten years in prison was better than execution."
I almost never agree with Clayton, so let me be the first to say bravo.
Of course, but I don't understand the relevance of this. I suspect that a survey of most people released after ten years in prison that asked, "Would you rather have been released from prison ten years from now instead of today?" would find that being released today was better than being released in ten years. What does such a preference show?
In any event, the only variable is time. Whereas time is a factor in discovering innocence, it is not the only factor or even the most significant factor. The biggest factor is investigation and judicial review. Death row inmates get a great deal more of that, which more than makes up for the fact that they're executed in a shorter time than it takes to serve out your average life sentence.
Accordingly, the lack of reversibility doesn't strike me as the most sound basis for opposing the death penalty. Even life without parole is irreversible given enough time, so the only question is the value of that time versus the value of heightened review. Even if you think that time itself is more valuable, it's a close call.