pageok
pageok
pageok
Should States Pass Capital Child Rape Statutes While Kennedy v. Louisiana is Pending?:
Yesterday the Governor of Missouri, Matt Blunt, urged the Missouri legislature to pass legislation making child rape a capital crime. Over at the Sex Crimes blog, Corey Rayburn Yung comments:
It doesn't make sense . . . for Missouri to actually work on a statute now since the decision in Kennedy could well strike it down in the next couple of months. But in the interim, talking about executing child rapists always makes for good politics.
  I look at this differently. I think now is the ideal time for a legislature to pass such legislation, as the Justices would surely take note of it. If the Justices really mean it when they say they look to evolving views and what states have done, then a state enactment of such a law when Kennedy is still pending would be a pretty strong expression of popular will.

  Indeed, there may be a sort of constitutional laches principle at work here. A legislature that declines to pass such legislation now may find that its failure to act now means that it can never act. So a legislature that may someday want to make child rape a capital offense should probably do so now.

  To be clear, I'm not endorsing such statutes as a matter of policy. But if states want to retain the discretion to have such statutes in the future, it's sensible as a matter of constitutional law to pass those statutes while the Kennedy case is still pending.
Malvolio:
Judicial politics aside, if you believe that the death penalty for child-rape makes good policy (that the number of molestations that are prevented justify the risk that a molester might kills his victim to escape prosecution), the law should be passed even if it is thereafter overturned -- it will do its work for however long it's in force.

Moreover, if you would otherwise worry that the death penalty itself is unjust (because, for example, it's irreversible), you can rest easy (or easier) in the belief that no one will have a chance to be wrongly executed before the law is overturned.
4.22.2008 2:35am
Gilbert (mail):
Judicial politics aside nothing. As a liberal in good standing I detest the nose-count approach to the meaning of the 8th Am. It shirks the duties of a judge to interpret the Constitution in light of reason and experience. If the meaning of cruelty was supposed to turn on the collective sentiments of the state legislatures there would have been no need for the amendment at all. That's not how rights work, and sooner or later the Court is going to realize that.
4.22.2008 3:09am
Public_Defender (mail):
If I voted self-interest, I should support this expansion of the death penalty. It would mean a lot more taxpayer money going into my pocket and the pockets of my fellow defense lawyers, especially public defenders.
4.22.2008 8:06am
Philistine (mail):
Just as a procedural matter--is the suggestion that the Supreme Court should take into account post-argument factual matters that it reads about in the newspaper?
4.22.2008 8:31am
NatSecLawGuy:
Whether they are supposed to post-argument factual matters or not they do. Therefore, Professor Kerr is spot on in arguing that if states want this their best advocacy would be to pass a statute.

However, on a policy level executing sexual offenders- who often are afflicted with a mental illness that causes their transgressions- is just a sad statement of the vindictive nature the public has towards these people.
4.22.2008 9:13am
Bill Dyer (mail) (www):
Given the whole "evolving standards of decency" Eighth Amendment analysis, your suggestion makes perfect sense.

That it seems so inappropriate -- almost as though the state legislatures would be strong-arming the Court -- is a good clue that the whole "evolving standards of decency" line of precedent ought to be scrapped in its entirety.
4.22.2008 9:46am
Bill Dyer (mail) (www):
Philistine: Procedurally, courts can take notice of, and consider if they think it appropriate, even the introduction of bills before they're passed. Online legal resources like Lexis/Nexis and Westlaw literally make these available on a same-day or next-day basis, and there are conventions in legal citation form (including citations to bill numbers, dates, and those online services) by which the courts can readily point readers to what the courts have considered.

The bottom line is that there's no procedural impediment. There may be a jurisprudential one. But considering a newly-passed state statute would be acceptable, while considering a newspaper report (or even a sworn affidavit) containing a new witness' testimony that wasn't introduced at a lower-court level would not be.
4.22.2008 9:51am
Corey Rayburn Yung (mail) (www):
I'm still not sure that if Missouri adopted the law, it would make any difference. Nixon and Blunt both joined the amicus brief of other states looking to adopt child capital rape statutes. And at the oral argument, the Justices talked about the amicus brief and seemed to count Missouri as part of the evolving trend in that regard.

I think the far more interesting question which the Court didn't talk about at oral argument is how to count the states that considered, but didn't pass capital child rape statutes. As many states did pass the laws as didn't since Louisiana first acted in 1995. Since, post-Roper, the direction of the trend figures into things, how do these last group of states count? Do they count more, less, or the same as states that never even contemplated such laws?

Either way, I'm not the bean-counting method of 8th Amendment jurisprudence is more than window dressing. If one more state adopting a capital rape law actually makes a difference in the outcome, then I would truly be shocked (not that we would ever know if that were the case).

Corey
4.22.2008 10:35am
PatHMV (mail) (www):
Yes, it's just terribly sad that the public feels vindictive towards people who brutally rape children under the age of 12. Shame on society for that petty vindictiveness... How dare we want to punish those poor helpless souls who brutally rape children.
4.22.2008 10:38am
pete (mail) (www):

However, on a policy level executing sexual offenders- who often are afflicted with a mental illness that causes their transgressions- is just a sad statement of the vindictive nature the public has towards these people.


Yes how dare the public be vindictive towards people who cause permanent harm to defenseless innnocent children? Who cares if the child is infected with an STD or suffers psychological trauma? Bad, bad publc for being so vindictive.
4.22.2008 1:27pm
Jiminy (mail):
To Pat and Pete, I agree that we need a measure of vengeance against the predators. Would another appropriate measure involve stronger research into preventative measures that keep the predators from acting in the first place? The point against the death penalty being that for the predator who is ready to act - he will rape then kill the child, as it's six of one, half a dozen of the other as far as a punishment goes.

We always scream for blood when the symptoms of the mental illness manifest and destroy the child's life, but we don't do enough to prevent the illness or recognize what creates that sickness in someone's head.
4.22.2008 1:51pm
NickM (mail) (www):
Jiminy - assuming arguendo the mental illness could be recognized before an attempt, does current constitutional law on involuntary commitment allow us to lock up someone who psychiatrists say "will someday rape a child"? I also think you're making an unwarranted assumption that it's a preventable mental illness (e.g., to what extent is it genetic).

Personally, I'm opposed to these laws as a policy matter, because I think the risk that a child rapist will kill the victim in hopes of getting away with the crime, there being no difference in punishment under such a law, is too great for the deterrent effect.

A much more interesting issue IMO is whether a mandatory death penalty upon conviction of murder with certain special circumstances (likely including rape of a child as one of those circumstances) would survive Supreme Court review.

Nick
4.22.2008 2:12pm
DCP:
The irony to me is that the one quick and simple solution to this problem - chemical or surgical castration - would never survive 8th Am. scrutiny, but the far more extreme alternative (lethal injection) probably would.

I have absolutely ZERO faith that these predators could ever be deterred or rehabilitated. Of all the crimes plaguing our society, this has to be the most utterly hopeless from a criminologist's viewpoint. I think back to one of those Dateline "To Catch a Predator" shows were one of these guys fell for the trap, and then - the very next day!!! - went back to the same website and arranged another meeting.
4.22.2008 2:25pm
pete (mail) (www):

We always scream for blood when the symptoms of the mental illness manifest and destroy the child's life, but we don't do enough to prevent the illness or recognize what creates that sickness in someone's head.


Do you have any actual proof that mental illness is a significant cause of child rape? What mental illnesses cause child rape? How many child rapists are unable (not unwilling, but actually unable) to control their actions? What percentage of child rapists are mentally ill and how severe and treatable are these mental illnesses? How much does this differ from the general criminal population? Don't we already have a trial system that can determine whether a person was legally insane?

To be quite honest this just sounds like excuse making by calling "evil" actions "sick", which takes the responsibility and guilt from the perpretator. From every thing I have read on this issue and from talking with professionals who investigate child sex abuse claims the vast majority of child molestors seem to be sane, but very selfish and bad people who already do not want to take respobsibility for their actions. They are already willing to blame the victim in many cases instead of taking responsibility.

I am quite willing to concede that for practical and cost/benefit reasons the death penalty for child rapists imay be an unwise policy. That does not make it an unjust or overly vindictive one.
4.22.2008 2:30pm
PLR:
To be clear, I'm not endorsing such statutes as a matter of policy. But if states want to retain the discretion to have such statutes in the future, it's sensible as a matter of constitutional law to pass those statutes while the Kennedy case is still pending.

Sensible from a constitutional law standpoint, and borderline insane from a humanistic standpoint.
4.22.2008 2:42pm
Deoxy (mail):

Given the whole "evolving standards of decency" Eighth Amendment analysis, your suggestion makes perfect sense.

That it seems so inappropriate -- almost as though the state legislatures would be strong-arming the Court -- is a good clue that the whole "evolving standards of decency" line of precedent ought to be scrapped in its entirety.


This is almost verbatim what I was going to say. The "evolving standard of deceency" thing is just plain stupid, and this is a good example as to why.

If the meaning of cruelty was supposed to turn on the collective sentiments of the state legislatures there would have been no need for the amendment at all.


Assuming you aren't being sarcastic, I have always found the SCOTUS logic on the 8th to be the problem, not the solution - by definition, the legally prescribed punishment for a certain crime (as opposed to "inventive" punishment created by a judge) is not "unusual", so it is therefore not "cruel AND unusual". I distrust the legislature, certainly, but I distrust the judiciary even more (Kelo, anyone?) - the legislature has to go before the voters occasionally, which SCOTUS does not.
4.22.2008 3:55pm
Thorley Winston (mail) (www):
I distrust the legislature, certainly, but I distrust the judiciary even more (Kelo, anyone?) - the legislature has to go before the voters occasionally, which SCOTUS does not.


I'm not sure why Kelo would be an example of why one would distrust the judiciary more than the legislature. Basically in Kelo, the SCOTUS said (I'm paraphrasing) that what constitutes a "public use" for the purposes of the Fifth Amendment's taking clause is a matter of public policy and they would defer to the legislative branch. It seems then that they were doing the very thing that people who say they want the courts to defer to the democratically-elected legislative branch on matters of public policy want them to do.
4.22.2008 6:18pm
theobromophile (www):
Yes, it's just terribly sad that the public feels vindictive towards people who brutally rape children under the age of 12. Shame on society for that petty vindictiveness... How dare we want to punish those poor helpless souls who brutally rape children.

I don't know what this world is coming to. Just the other day, I saw a teenager help an old lady cross the street. What an abomination.

Basically in Kelo, the SCOTUS said (I'm paraphrasing) that what constitutes a "public use" for the purposes of the Fifth Amendment's taking clause is a matter of public policy and they would defer to the legislative branch. It seems then that they were doing the very thing that people who say they want the courts to defer to the democratically-elected legislative branch on matters of public policy want them to do.

You're missing the big distinction: the Constitution has removed some matters of public policy from the legislature (gun ownership, free speech rights, etc.). One of those rights is that to not have your property taken, except for public use, and with just compensation.

There are many matters which are appropriate for legislative and not judicial determination: those are the matters to which the Constitution does not speak. It is incorrect for the judiciary to read their policy preferences into the Constitution by holding that the document protects rights which it does not so protect, and it is incorrect for judges to read their policy preferences into the document by holding that it does not protect various rights which it explicitly protects.
4.22.2008 6:44pm
Thorley Winston (mail) (www):
You're missing the big distinction: the Constitution has removed some matters of public policy from the legislature (gun ownership, free speech rights, etc.). One of those rights is that to not have your property taken, except for public use, and with just compensation.


I think you may be misreading what I wrote. There was never a question whether the Takings Clause of the Fifth Amendment applied in Kelo. The only question was what constitutes a "public purpose" and/or who decides what constitutes a "public purpose" for the purpose of the Takings Clause of the Fifth Amendment. The Court held that that what constitutes a "public purpose" wasn't something that the Constitution gives any guidance on and it was question for the legislative branch.


There are many matters which are appropriate for legislative and not judicial determination: those are the matters to which the Constitution does not speak.


Correct and since the Constitution is silent on what constitutes a "public purpose" for the purposes of the Takings Clause of the Fifth Amendment, this would be one of those cases.
4.22.2008 7:41pm
theobromophile (www):
While Scalia did not separately dissent, I imagine that he would address that argument by pointing out that "public use" means exactly what it meant in the late 18th century. We do not read in "evolving standards of public use" or the like into the document; we read the words to mean what they did mean back in the day. To do otherwise is to permit Congress to eviscerate the Constitution by using its own definitions, not those contained within the document.
4.22.2008 7:50pm
gwinje:
Did this thread end because everybody got off work? I was enjoying reading it after getting home, but it seemed to end abruptly.

If it starts up again, I hope it moves away from Kelo and back to the odd opnion when a justice rants in one direction and votes in another.
4.23.2008 12:06am
methodact:
Too bad you can't just kill people personally, OinKerr. Think how much fun that would be. But then again, maybe you do.
4.23.2008 3:54pm