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Kennedy v. Louisiana:
This morning the Supreme Court is holding argument in Kennedy v. Louisiana, the case on the constitutionality of Louisiana's statute imposing the death penalty for rape of a child. I'll be away from a computer most of the day, but lawprof Corey Rayburn Yung's Sex Crimes blog is providing comprehensive coverage. If you're interested in the Kennedy case, definitely check it out.
ithaqua (mail):
I assume the ACLU, as is their custom, filed an amicus curiae brief on behalf of child rapists in general?

Seriously, I can't see any reason why execution for rape - especially child rape - should be considered either cruel or unusual. In a less "enlightened" era, the problem for the justice system was not with executing rapists but with keeping them unlynched until the sentence was formally imposed. Admittedly, there would have to be some safeguards so that feminist redefinitions of 'rape' (eg, all sex) wouldn't be liable for the same penalties as genuine crimes, but still, this LA law is a good start.

I am a little worried, though. In most cases, I'd rely on the conservative majority on the Court to hold pedophilia in the appropriate contempt, but a lot of them are Catholic :)
4.16.2008 11:39am
Vern Cassin (mail):
The Kennedy case presents an opportunity to finally get rid of the Coker line of reasoning. Let's hope it does.

I join Justice Scalia in his astonishment that a plurality of states is sufficient to create a consensus that a punishment is cruel and unusual.

Beyond the lunacy of the mathematics, let's consider the following: This method of interpreting the 18th amendment means that ANY TIME a "majority" of states is against a type of punishment, it becomes cruel and unusual-- and we can never go back, because any state that switches allegiance will have its statute struck down by the court.

You might say this is good- that punishments should only become weaker and more limited over time, as we evolve into a more "decent" society. But decency doesn't work like that.

Decency isn't just about how we treat criminals. Imagine if we stopped punishing crime altogether. Would that be "decent"? I doubt it. First, because we would be failing to give criminals the punishment they deserve, and second because we would be causing harm to the noncriminals in society. We would be acting with clemency, but not with decency.

Decency, in other words, is a multi-party issue. And, while it might sometimes make us more lenient towards criminals, it can also evolve in a way that makes us harsher towards them.

The Coker Court, however, would have us only move towards clemency for criminals, without considering how decent we are to everyone else.

Let's look at the specific issue in Coker. Maybe you agree that it's indecent to execute people for raping adult women. I don't. I believe it's indecent to let rapists back on the street after a couple of years in prison. I believe it's indecent that we give greater punishment to drug dealers than to people who shatter a woman's sense of security forever. More to the point, I believe that it's indecent that the state fails to a) PUNISH what I feel is the most odious crime, b) EXPRESS its utter contempt for rapists, and c) DETER an enormous criminal problem by occasionally using its most coercive punishment.

But I don't get a say anymore. And even if I could convince state after state, under Coker jurisprudence I will never get a say.

If we can't overturn Coker, let's at least make sure we don't continue with this lunatic approach to the eighth amendment.
4.16.2008 11:46am
Chris Lawrence (mail) (www):
The problem as I see it is that if you allow the death penalty for child rapists, you've essentially incentivized people who would previously have been child rapists to become child rapists-then-killers (or vice versa) since the penalty for the behavior will be the same, and there's less chance of their getting caught since the most obvious witness will now be dead.

That said, just because something is monumentally stupid from a public policy perspective doesn't make it unconstitutional.
4.16.2008 12:00pm
matth:
The incentives-based argument against death for child rapists seems unconvincing. Not all child rapists who qualify under a given statute will be executed. Someone who kills his victim would still be far more *likely* to be executed; that should be incentive enough not to kill victims. Also, in practice, many child rapists may fear that killing their victims vastly increases their chances of being caught. Intra-family child abusers, for example, might often expect their victim to stay silent, but would know that killing their victim ensures a police investigation. These rapists don't need to be discouraged from killing their victims, but the availability of a death sentence might help disincentivize them from committing especially aggravated rapes, or committing repeated rapes.
4.16.2008 12:22pm
iowan (mail):
To a serious note What standing does the court have to make this decission? Legislature passed it, Gov signed it. Nothing is mentioned in the Constitution. Under what premise is this decission to be based. To me this is a societal decission, in this nation made thru the elected representitives. If any feels the sentence is to harsh, go to the legislature and have it changed. The most upsetting part of this is the the court even consider to overturn a sentence.
4.16.2008 12:41pm
Vern Cassin (mail):
I note, with some dismay, that I have conflated Atkins and Coker. My dismay with the reasoning still applies, however.
4.16.2008 12:56pm
elvez1975 (www):
Arguably, sentences for nonviolent drug offenders are way out of line, here. The fact that people convicted of violent crimes receive lighter sentences that people convicted of nonviolent drug offenses speaks to the fact that the War on Drugs has overcriminalized drug offenses and is clearly treating folks convicted of those crimes disproportionately.

If the Court were to overrule Coker and take the position that a crime that doesn't result in death can be punished by death, what is the real stopgap to prevent us from adding a whole mess of crimes to the list? Stole over $1 million? Death. Almost killed dozens of people? Death? Caused serious bodily injury? Death. Possessed over 10 kilos of cocaine? Death. Do we care that we become on par with Iran, Indonesia, or China?
4.16.2008 1:15pm
iowan (mail):
elvez your argument is worth having. But why would the judiciary b envolved? These are society debates and judges are not final arbitors. Their job is to enterpret the laws on the books.
4.16.2008 1:36pm
Libertarian1 (mail):
The way social pressures effect our laws, if the death penalty is acceptable here, I make a prediction. Somewhere, sometime a 16 year old black male will have consensual intercourse with a 14 year old caucasian female and a jury will vote the death penalty.
4.16.2008 1:56pm
Thorley Winston (mail) (www):
The problem as I see it is that if you allow the death penalty for child rapists, you've essentially incentivized people who would previously have been child rapists to become child rapists-then-killers (or vice versa) since the penalty for the behavior will be the same, and there's less chance of their getting caught since the most obvious witness will now be dead.


I would tend to think that child rapists already have an incentive to kill their victims for fear of being sent to prison with a rap as a "baby raper" and having the inmates (many of whom may have been victims of sexual abuse themselves) extract their own form of "justice."
4.16.2008 1:58pm
Thorley Winston (mail) (www):
I assume the ACLU, as is their custom, filed an amicus curiae brief on behalf of child rapists in general?


I suppose it was either that or file a brief defending the expressive rights of wedding photographers. ;)
4.16.2008 2:00pm
Prufrock765 (mail):
iowan:
How then do you read the 8th amendment and do you believe it is applicable to the states?

The two things that struck me about this case were:
1. The amicus brief filed by the group of social workers and alliances against sexual violence called for finding the death penalty inapplicable to Kennedy.
2. I too am worried that when this opinion comes out if LA wins, all the legislators running in close races will try to outdo one another in proposing other crimes to add to the list. Could be an unsavory spectacle.
4.16.2008 2:19pm
Thorley Winston (mail) (www):
The way social pressures effect our laws, if the death penalty is acceptable here, I make a prediction. Somewhere, sometime a 16 year old black male will have consensual intercourse with a 14 year old caucasian female and a jury will vote the death penalty.


How much do you care to wager?
4.16.2008 2:33pm
Libertarian1 (mail):
How much do you care to wager?



Are you saying that no jury ever will ever recommend it or the courts won't allow it? If the former I will take that bet, if the latter I agree, no way. (I hope)

Just to remind you of the 16 (17?) year old still in jail for a 10 year term because of consensual oral sex with a girl 2 years younger (Georgia). I think in that case both parties were of the same race.
4.16.2008 2:45pm
Vern Cassin (mail):
"If the Court were to overrule Coker and take the position that a crime that doesn't result in death can be punished by death, what is the real stopgap to prevent us from adding a whole mess of crimes to the list? Stole over $1 million? Death. Almost killed dozens of people? Death? Caused serious bodily injury? Death. Possessed over 10 kilos of cocaine? Death. Do we care that we become on par with Iran, Indonesia, or China?"

Well, I suppose the simple answer to that is that there is none. Except the same stopgap that exists in countries besides Iran, Indonesia, and China: people won't vote for it. I doubt you could get a majority of people to vote the death penalty for, say, grand theft.

Outside of that, there are a number of reasons why you might constitutionally allow the death penalty for rape (especially child rape) and not for, say, drug possession. You could use an original meaning interpretation, for instance. Opiate possession was largely legitimate in 1792, and remained so even at the time the 14th amendment was ratified. The idea of using the death penalty for it might well have been seen as cruel and unusual.

You could also use a sort of off-the-cuff natural law interpretation. Is killing a rapist cruel? Well, weigh the crime (extreme) with the punishment (extreme) and in my view it seems reasonable. Killing someone for, say, grand theft? Somewhat less compelling. That's an uncomfortably discretionary method of interpretation, but not an entirely vacuous one. After all, we all have some sense that some things are cruel and unusual as punishment (torture) and that some things are not (reasonable fines).

Or maybe we should use an "evolving standards" jurisprudence, but just take a look at the Gallup polls rather than at state legislation. A super-duper majority saying a given punishment is "cruel" means we should constitutionally ban it- until the poll changes. That would at least get us past this crazy "one-way evolution" problem, which presumably ends with us giving criminals cotton candy and pointing them towards the nearest jewelry store.

Any of these methods could separate us from Iran, China, etc. That, functional democracy, and open internet access.
4.16.2008 2:56pm
Vern Cassin (mail):
"Just to remind you of the 16 (17?) year old still in jail for a 10 year term because of consensual oral sex with a girl 2 years younger (Georgia). I think in that case both parties were of the same race."

If that's the case I'm thinking of, I suspect there was some bleedover from the other things the kid was accused of (nonconsensual acts). There's plenty to argue about there, but I think you should give that jury a little more credit. I doubt they would condemn a kid to death for statutory rape, just as I doubt they would have condemned this kid had it not been for various other things they believed he did.
4.16.2008 3:00pm
DCP:

How many people convicted of child rape have been executed by the state in the past 50 years? I'm guessing very few.

How many people convicted of child rape have been "executed" by gruesome means while incarerated through the informal process of prison justice in the past 50 years? I'm guessing hundreds.

If you think death is an appropriate punishment for this type of offense, then it seems best to just keep the government out of it. In fact, if I were convicted of raping a small child, I would prefer to be sent to the isolated death row structure, where I would have twice the security, an army of bleeding heart lawyers working tirelessly to supply me with 25 years worth of appeals, some peace and quiet and, ultimately, little chance that the imposed sentence would ever be carried out. Please don't throw me in THAT briar patch.
4.16.2008 3:15pm
Prufrock765 (mail):
Having read the transcript, I was rather surprised how well it went for the State. Roberts in particular seemed to be rather solidly in the State's corner.
It looks like Kennedy will be the swing vote again, and he did not tip his hand too much as far as I can tell.

Interested to hear the experts opine on this.
4.16.2008 4:21pm
Philistine (mail):

Just to remind you of the 16 (17?) year old still in jail for a 10 year term because of consensual oral sex with a girl 2 years younger (Georgia).


He's out now.
4.16.2008 4:25pm
NaG (mail):
Libertarian1's hypothetical is a non-starter since the statute at issue only applied when the victim was 11 or younger.

When even Justice Ginsburg noted that the interests underlying child rape were different than the Victorian-era notions of women-as-property that undergirded capital punishment for adult women, I figured that the petitioner was well on his way to the three-drug cocktail that the Court had announced as constitutional just minutes earlier.
4.16.2008 4:32pm
Dave N (mail):
It looks like Kennedy will be the swing vote again, and he did not tip his hand too much as far as I can tell.
After reading Baze, I have little doubt that Justice Stevens will vote for Kennedy. Let us hope that Justice Kennedy will vote for Louisiana.
4.16.2008 5:49pm
cjwynes (mail):
If it were up to me, there wouldn't be any "proportionality" test for the constitutionality of punishments under the 8th Amendment. But that ship has sailed. If we concede any kind of role for the Court to engage in proportionality review, then I think we have to conclude that the death penalty is incongruous with any crime other than intentional murder. Limiting it to intentional murder seems like a rational dividing line and has a broad and simplistic appeal as such. Indeed, Justice Stevens' opinion in the lethal injection case handed down today alludes in a footnote to the fact that various simplistic maxims that all boil down to some regurgitation of "an eye for an eye" still account for the largest plurality of people's justifications for why they support the death penalty.

Of course, I'm just one lawyer. What does one lawyer's opinion count for against the will of the people of Louisiana to set the line where they choose? Thanks to Earl Warren, the answer is: everything, if he's wearing the right robes.
4.16.2008 6:08pm
dll111:

iowan (mail):
elvez your argument is worth having. But why would the judiciary b envolved? These are society debates and judges are not final arbitors. Their job is to enterpret the laws on the books.


"The law on the books" is not only the Louisiana law, it's the Constitution, the 8th Am. The first law must comport with the second. And it "emphatically" is the job of the judiciary to determine that.
4.16.2008 6:15pm
Oren:
If it were up to me, there wouldn't be any "proportionality" test for the constitutionality of punishments under the 8th Amendment.
Awesome. I'm going to incorporate my own town and pass ordinances mandating long prison sentences for mundane offenses (traffic and whatnot). Actually, the town of New Rome, OH did just that and succeeded in extorting (and then embezzling) millions of dollars before the governor stripped them of their right to hold a town court. I guess the 8th didn't do anything in that case . . .
4.16.2008 6:15pm
ithaqua (mail):
"The way social pressures effect our laws, if the death penalty is acceptable here, I make a prediction. Somewhere, sometime a 16 year old black male will have consensual intercourse with a 14 year old caucasian female and a jury will vote the death penalty."

Jeremiah Wright? Is that you? Careful, your anti-white racism is showing.
4.16.2008 7:23pm
cjwynes (mail):
Oren, as you well know, the constitution is not designed to be the remedy for every perceived injustice in the nation. I guess your argument is that if the 8th amendment did not encompass proportionality review then some parade of horribles would result. The fact the town in your example was dealt with politically undermines that argument. Invoking the constitution was not necessary to end those abuses.

For what it's worth, Ohio must have an extremely bizarre criminal justice system if municipalities are permitted to sentence people to terms of imprisonment. But it's up to the people of the state to fix that.
4.16.2008 7:41pm
Oren:
cjwynes, I highly suggest you read up on the fact concerning New Rome, OH. For decades the family in charge of New Rome stole from, falsely imprisoned and otherwise treaded on any poor citizen that had the bad fortune of driving into their speed-trap of a town. They set up a court that was in all ways abhorrent to any standard of modern justice and decency. People accused of speeding were routinely arrested (thanks to the ham-fisted opinion in Atwater v. Lago Vista), shackled to a bench in the court-house until they could cough up the entire fine for all their offenses (broken taillight, improper use of a signal. . . ) IN CASH. Many decent people were thus deprived of their basic constitutional rights by the kleptocracy that ruled New Rome.

The fact that is was eventually resolved politically does not excuse the decades in which it was allowed to continue. It brings no relief to those whose rights were trampled and no recourse allowing the return of the money extorted from them.

I don't consider this extending the Constitution to be a remedy for every injustice - it applies only to those injustices that involve government officials impinging on the constitutional rights of citizens of the United States - rights that are ours to exercise independent of the actions legislature - in fact, the majority of those rights are specifically written to be restrictions on the legislatures themselves.
4.16.2008 11:09pm
Libertarian1 (mail):
"The way social pressures effect our laws, if the death penalty is acceptable here, I make a prediction. Somewhere, sometime a 16 year old black male will have consensual intercourse with a 14 year old caucasian female and a jury will vote the death penalty."

Jeremiah Wright? Is that you? Careful, your anti-white racism is showing.



Well, I am from Chicago and used to live on Martin Luther King Blvd.
4.17.2008 2:07am
cjwynes (mail):
Oren, I'm not even sure the abuse you're talking about has anything to do with the congruity of the punishment to the crime, but rather with the use of threatened punishment to extort wealth from citizens. That's a different problem entirely. I'll read up on it when I get the chance, but that's what it sounds like from your description.

Now I suppose you may want to say that incarceration is disproportionate to speeding, and if the court had held the 8th amendment to say this then that would have possibly prevented this abuse. Well it may surprise you, but in the very circuit court where I practice, under the laws of the state of Missouri, a person who speeds 90mph in a 70mph zone is guilty of a class-B misdemeanor and could be punished by up to 6 months in jail. If the judge decided this morning that from now on all speeders will be doing months in the county jail, there's not a thing any other court in the state could do about it. We MUST rely on the pragmatic concerns, such as the limited space in the jail, and the judge's own sense of justice, to keep this sort of thing in check. Otherwise, under an 8th amendment approach, we end up with appellate courts deciding what is and is not serious enough to permit incarceration, and if it does permit it then how much, and so on, which is unwieldy in the extreme.
4.17.2008 11:43am
Oren:
cjwynes, perhaps the 8A isn't the best way to go about fixing New Rome (retrospectively, anyway). I would be fine with reversing Atwater and holding that arrest for an offense that does not have jail-time is unreasonable. That would cut out the largest source of abuse, and I suppose the citizens can eat the rest of it (or detour around that speed-trap of a city).
4.17.2008 2:06pm
Oren:
Also, I'm never driving in MO again.
4.17.2008 2:48pm