In turns out that Justice Kennedy's opinion in Kennedy v. Louisiana declaring the death penalty unconstitutional as a punishment for child rape mischaracterized federal law on the matter. As the NYT reports this morning, Kennedy's opinion claimed that the death penalty was only available in six jurisdictions within the United States, but that's not true. Kennedy correctly observed that the death penalty is not available for child rape in thirty of the thirty-six state jurisdictions that allow capital punishment. But Kennedy wrongly asserted that federal law does not provide for capital punishment either. This latter claim is simply untrue. Indeed, Congress has provided for the death penalty for child rape quite recently.
The mistake was uncovered by military blogger Dwight Sullivan, in this post for CAAFlog. As Sullivan noted, the FY2006 National Defense Authorization Act provided for capital punishment for child rape.
Section 552(b) of the National Defense Authorization Act for Fiscal Year 2006, 119 Stat. 3136, 3264 (2006), provides that "[u]ntil the President otherwise provides pursuant to" UCMJ article 56, "the punishment which a court-martial may direct for an offense under" the amended UCMJ article 120 "may not exceed the following limits: . . . For an offense under subsection (a) (rape) or subsection (b) (rape of a child), death or such other punishment as a court-martial may direct."There is still time for the parties to the case to file a petition for reconsideration, but such petitions are rarely granted. I doubt Justice Kennedy would have decided the case any differently had he been more informed about current federal law. Nonetheless, it should be quite embarrassing that none of the advocates noted this error until now.That is a congressional statute expressly authorizing the death penalty for the rape of a child. How come neither side in the Kennedy case even mentioned it?
The NYT story closes with a kicker:
No one in the military has been charged with a capital crime yet under the revised provision. And despite the flurry of activity surrounding the death penalty, the military has not in fact executed anyone for decades. Its last execution took place on April 13, 1961, when Pvt. John A. Bennett was put to death by hanging. His crime: the rape of an 11-year-old girl.
UPDATE: How bad was Justice Kennedy's mistake? Consider this passage from his opinion discussing the allegedly evolving consensus:
As for federal law, Congress in the Federal Death Penalty Act of 1994 expanded the number of federal crimes for which the death penalty is a permissible sentence, including certain nonhomicide offenses; but it did not do the same for child rape or abuse…. [A]n offender is death eligible only when the sexual abuse or exploitation results in the victim's death."Well, not exactly," notes Andrew McCarthy. He adds: "In point of fact, if there actually was a national consensus, it trended toward discouraging child rape by making execution an available sanction."
Related Posts (on one page):
- Should the Supreme Court Take Advantage of the Web?
- Post Calls for Kennedy Rehearing:
- Blogger Finds Factual Error in Kennedy's Kennedy Opinion:
Embarassing for Louisiana? They're not the ones who flatly asserted a lie. That was Kennedy.
Chalk it up as yet another reason for him to be impeached.
Every jurisdiction outside the U.S. has "little in common with the rest of our legal system" -- certainly less so than the U.S. military system -- but that hasn't stopped certain members of the Court from relying on it, particularly in the context of the Eighth Amendment.
This embarrassing incident is about as good as it gets. First, not a single one of the high-falutin attorneys who litigated the case -- on either side, as party or amici -- uncovered the fact. Rather, it was a lone military law blogger. So much for the vaunted "Supreme Court bar."
Second, the fact that almost everyone agrees that it wouldn't have affected the Court's opinion (as will be evidenced by the fact that a petition for reconsideration will almost certainly fail) shines an even brighter light on the majority's disingenuousness regarding its "national consensus" argument. In other words, it really wouldn't have mattered anyway if no less a body than the U.S. Congress, representatives of the nation, had, in the last couple of years, enacted capital punishment for the rape of a child.
Third, the Court will almost certainly -- or, at least, should, for accuracy's sake -- issue a revised or amended opinion noting or fixing the error. Which will be the perfect cap to a stinker of an opinion.
On the other hand, if this was asserted in a reply brief, in an amcius brief, or not at all, then blame should be shared more narrowly.
Even so, I hope there's a reconsideration petition filed. AMK needs to have his nose rubbed in this awful opinion as much as possible. A reconsideration petition pointing this out would be a good start.
Agreed. Of course there's no hope that the Super Legislature of Judicial Masters will change their mind. They claim to be as infallable as the Pope, only on legal matters instead of spiritual matters. Rubbing the mistake in Kennedy's face would be a nice way of saying the Emperor has no clothes.
DemsPedophiles. Cause Justices never make mistakes, only calculated evil lies.If he isn't impeached soon, his next ruling may very will give him dictatorial powers!
You can only lie if you are conscious about the difference between the reality and your statement.
One cannot lie by mistake.
Fine. Kennedy's just a moron.
No. Here's the section from the opinion:
There's no distinction between civilian and military law -- it's just "the Federal Government." That's just plain wrong.
The closest Kennedy could come to weaseling out of it would be the last sentence, in which he states, "in 45 jurisdictions, petitioner could not be executed for child rape of any kind." That's true, since petitioner here wasn't in the military or being subjected to military law. But you know, and I know, and he knows, and everyone knows, that's not what he meant. But we'll see if his defenders jump to that.
No, making a mistake in itself does not make you a moron.
Only gods and insane people never make mistakes.
I won't ask which group you belong to.
I'm not sure it's an indictment of Kennedy that he did not go and check behind a factual assertion that no brief contradicted.
It doesn't matter. His decision presumably was based on false facts. Of course, since we know he wouldn't have changed his mind anyway, we're all treating this new fact as merely interesting but unimportant. Yet if Kennedy is to believed (and he's not), then this 2006 law was a serious point in favor of an emerging consensus of using the death penalty for child rape.
The reason why Kennedy should be impeached is because we KNOW that this fact wouldn't have mattered to him. If it were known at the time, it would've been the subject of a good portion of the opinion. And an honest judge might acknowledge that it was a serious issue to be considered. For Kennedy, facts like these are inconvenient, and ultimately, irrelevant.
> Even so, I hope there's a reconsideration petition filed. AMK needs to have his nose rubbed in this awful opinion as much as possible. A reconsideration petition pointing this out would be a good start.
And maybe he would really reconsider—not because the facts matter to Kennedy. They do not. But I sensed a pretty loud outcry against them. I can say to most people “who is more worthy of execution? Benedict Arnold or this sonofabitch in Kennedy v. LA?” The answers from even liberals is the second. So maybe he could change his mind, or Souter might suddenly spring a pragmatist bone and do the same. Or something. If I was LA’s lawyers, I would be doing that.
ARS
> If the counsels never even noticed this law, how was SCOTUS supposed to know about it?
Fair enough, which suggests this whole project of trying to divine a national consensus is a bad idea.
> Moreover, if SCOTUS somehow found out about it on its own and based its opinion on that knowledge, wouldn't that violate the purpose of the appeals process, which is to review lower court decisions?
Actually no. They can figure things out on their own—its allowed.
Wings
> Are you sure that this is as embarrassing as you imply?
Yes, it is. If congress expressed an opinion on the subject, it is relevant.
Vassil
> No, making a mistake in itself does not make you a moron.
Give them a break. Kennedy violated his oath of office in order to spare the life of a man who raped his own 8 year old daughter so hard that it literally broke the barrier between her vagina and her anus, because it would somehow offend the dignity of the rapist. He has no concern, however, for the dignity of the victim. The opinion is an outrage. The mistake was not moronic, but I can understand why people are angry enough to draw fine distinctions.
Carolina
> I'm not sure it's an indictment of Kennedy that he did not go and check behind a factual assertion that no brief contradicted.
The indictment is on relying on that kind of indicator in the first place. At least it is to me. The constitution is a constant, not something that changes according to a judge’s whim or his lame attempt at canvassing the zeitgeist of the country. Read alito’s dissent and tell me was not brazenly dishonest in his opinion—not for this factual error, but for claiming that a clear consensus exists either way.
As a clerk, I can certainly defend oversights and mistakes generally. But here the mistake is material to the entire argument. If you render something unconstitutional by counting heads, you better count them correctly.
I agree with you completely. But that analysis is not altered by the fact he missed a law cited by no one. I agree his reasoning is horrible. I just don't see how this new fact changes anything -- it certainly does not suggest to me that Kennedy is incompetent.
Slip opinion, page 10.
I think he's evil, and none of the other Justices should try to reason with him anymore.
Odd, then, SCOTUS does it nearly every time. So the thinking goes, "let's cite to Justice Jackson (or better yet no cite at all) and then go ahead and make the argument solely for cover?' It’s certainly relevant to a national consensus inquiry. Sadly, this demonstrates the calculus only matters when it favors the outcome AMK wants.
I do think when two other co-equal branches speak on it, and presumably have found it constitutional; it most likely should impact your analysis. But then I'm old fashioned that way.
@Anon #319: Not to be put in a position of defending this particular ruling (disclosure: I, like a big chunk of the world's population, think that the death penalty is repulsive on principle, but like any good lawyer I'm quite happy arguing aspects of the ruling on the merits separately from the big picture), but in any SCOTUS case where the constitutionality of a legal instrument is the issue at least one, or possibly both other branches consider the instrument in question constitutional. Otherwise it wouldn't come before the court in the first place.
Also, I think the best way to look at the language I quoted from the ruling is that the Court's analysis essentially has two (or three) prongs, one of which is the head count. It's not an "argument for cover", the more states have a certain law on the books, the less likely the Court would be to find it cruel &unusual, bearing in mind the analysis from precedent and from the Court's own understanding. (In other words, if all 50 states unanimously re-introduced death by decapitation, that would still not pass muster, given precedent, etc., but the less clear-cut the outcome is under the other two prongs, the more the head count matters.)
I understand that strictly speaking what the other branches say about the Eight Amendment doesn't factor into the current formal jurisprudence. Yet, it's not like the other branches have no ability or duty to make their own independent constitutional judgments on issues such as this one. So, if you are going to thumb your nose at them, you could at least address it in the opinion.
And Congress and the President, unlike the states, do represent the entire country. So, I would think when trying to discover that national consensus, what the two other national bodies 'think' about an issue ought to weigh somewhat heavily. So, again, if you are going to discount their opinion, at least discuss it. And the failure to do so, in my mind, ought to require reconsideration and a new opinion.
LTC Michele Shields, Criminal Law Division, Office of the Judge Advocate General, in an article entitled The National Defense Authorization Act for Fiscal Year 2006,
Amendments to the Uniform Code of Military Justice reviewedg the Joint Service Committee on Military Justice Report and on the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2006, Pub. L. No. 109-163, 119 Stat. 3136 (2006), at great length.
Among other things, the NDAA amended Art. 120, Uniform Code of Military Justice (UCMJ), 10 USC Sec. 920, which amendments made rape of a child a capital offense.
Her analysis leaves no doubt that the amendment of Art. 120, UCMJ, was to conform it to existing federal law. She wrote:
It is pretty clear that Justice Kennedy's "consensus" argument is pure hokem. Not only did the Court (and appellate counsel) miss 10 USC Sec. 920 and the 2006 law enacting a death penalty for rape of a child, they also missed the 2006 Federal Register notice and public comments. I wonder what the comments and discussion in the FR look like?
Maybe what you're looking for is something like what the Court of Appeals did in the South-Dakota abortion case this week, in the context of a request for a preliminary injunction seeking to enjoin the enforcement of a statute.
(Page 12-14, citations and footnotes removed.)
I'd assume that the SG is typically responsible for determining which cases actually have the potential to affect federal statutes. I further assume that he typically does so by asking various branches of the federal government whether a given case implicates the areas of law that they administer. (Again, I could be wrong, so I'd love to hear from folks who have inside information.) But if that's the way it typically works, I wonder what went wrong here. Did the SG ask the Criminal Division, but not DoD? Did the Army miss it too?
I have to suspect that people in the SG's office are pretty shocked to discover that a piece of federal legislation got struck down without the United States even making an appearance.
(Note also that, during oral argument, Kennedy's counsel responded to a question about whether this decision would affect the federal drug kingpin and treason laws by alluding to the fact that the SG hadn't appeared in the case.)
Perhaps, with more thought, I could think of way that such things would and should formally factor into the legal test. But my initial thought is, yes, the Feds ought to get more consideration under the national consensus prong.
> Dave N, disagreement clearly isn't enough. Kennedy isn't just wrong, he has violated his oath of office, and that's the Objective Truth!
As per your name, sarcasm noted. So you think that the constitution changes according to consensus? Really?
No, that’s called not even faking it. In Kennedy v. LA, Kennedy eliminated any reasonable doubt that he was just making it up as he went along, and not actually, honestly, trying to read and abide by the constitution.
I mean really are you going to argue that Benedict Arnold is worse or more deserving of death than a man who raped his own 8 year old daughter so hard that the wall between her vagina and anus was ruptured? I am a good patriot, so I don’t look kindly on treason, either, but that is not even a close call to me. Even if you oppose the death penalty, its really hard to say that if treason is a capital offence, that child rape should not be.
Aaron
Some may recall this was the lawyer Justice Kennedy pummeled earlier in the term during oral argument in Preston v. Ferrer for an "incorrect...statement in [his] brief."
Basically, it seems to me to be a fixed text that changes as society's understanding of what the words person, speech, etc. change.
But I am not so hubristic as to assume that my interpretation of the Constitution is the Objective Truth and that any Justice who goes against it is doing so on purpose. I'll disagree, but I won't accuse those who do not adopt my interpretation of breaking their Oath.]
He's not just a VC commenter, ladies and gentlemen, he's also a time-traveling mind reader!
I assure you, I was not refering to the Civil Rights Act of 1875, which was passed in the same era and was so broad as tobe found unconstitutional, yet did not ban segregated schools.
Sure, and while we're at it, let's disbar all of the lawyers involved, including amici.
Yes, absolutely! They all must go down to stop the corruption inherent in the system. Wait, now I'm beginning to sound like Sarcastro myself.
"I'm in favor of repealing Article 3."
Am I being sarcastic, or not?
I think I'd be careful of the sarcasm on this point. Justice John Marshall Harlan (aka, the First Justice Harlan and aka "The Great Dissenter") dissent in Plessy isn't that far off of what was held in Brown 60 years later. He also was the first Justice to contend that the Bill of Rights (in its entirety - no selective incorporation) was incorporated into the 14th Amendment and applied to the states. Although a Union Colonel during the Civil War, he came from a wealthy Kentucky slaveowning family, and owned slaves. So, he wasn't exactly from the wild-eyed fringe of his time.
Hence, from a historical perspective, there was at least one Sup.Ct. Justice who at about the time the Civil War Amendments were adopted believed that "equal" meant "equal".
If I am arrested for stealing a candy bar and am ordered to pay restitution, is it "cruel" to punish me further? Of course not.
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Mistakes happen. Most of them are inconsequential, meaning they don't affect the outcome. But when a decision hangs on a finding, the research is reasonably expected to be deeper.
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I made a practice of checking cites (in cases) for the propositions those cites were represented as embodying. I hesitate to affix a label, but "dishonest," "misrepresenting," and "outright lying" come to mind as being the case, and those instances are NOT hard to find. They aren't the rule, of course, but they aren't rare.
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In legal briefs and motions, well, the two sides are fighting, so one would EXPECT to find cases being misrepresented. Judges and their clerks are supposed to pierce the surface of the argument, but their productivity is measured too.
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One of many dirty little secrets is that a significant fraction of the practice of law is driven by the skill (read $$$$) of the advocate; and the outcome bias of the judge. The great unwashed masses are supposed to just be awed and/or baffled by bullshit.
It seems that facts are "merely inconvenient things" to Kennedy's critics. Alito made the same mistake that Kennedy made. No government lawyer caught it. Anyone who implies that this was an intentional error shows that they are either dishonest or ignorant of how litigation works.
Sometimes lawyers make mistakes. If the other side doesn't catch it, sometimes a court repeats the error, even in the Supreme Court.
As Scalia has pointed out, the Supreme Court isn't final because it's infallible, it's infallible because it's final.
Many people have pointed that out, including me, but it was Justice Robert Jackson who first wrote it in Brown v. Allen over a half century ago.
At some point we will have a President who will invoke separation of powers, fight for his office and tell Congress to impeach the Supremes, impeach him or do nothing but watch while he defies contempt of court.
This would require a President with energy, which is the major reason hy it hasn't happened under the current President.
None of my attempts at researching the law on Lexis or Westlaw have turned up references to the UCMJ -- it is a different world. And it is perfectly reasonable that soldiers under military discipline be punished more harshly than civilians for comparable offenses -- slacker Pvt. Slovik would have simply been fired in civilian life, but as a soldier was executed for refusing to do his job.
Finally, one of the clear indicia of being an unusual punishment is infrequency. A soldier's being executed at the time of the Bay of Pigs invasion lacks contemporary relevance. The case of Benedict Arnold, much, much less. Six, even seven jurisdictions out of 52 allowing for the death penalty does not make it usual, especially because they haven't carried it out.
Gosh, Winston, I don't think you understand us Raving Righties very well. It's not about tit-for-tat; it's about Kennedy and the rest of us sharing a common humanity which is demeaned by his presence. Letting him live lowers 'the human standard' that defines us all, more than killing him does.
It takes a special effort for someone to prove that he's a human pollutant but it can be done. But the capital offense isn't the criminal act that brings him to notice, it's being the sort of person who'd do the act. By (a) raping (b) his daughter and (c) severely injuring her for (d) his own momentary pleasure (e) without regard for the damage pain and betrayal would do to her psyche, Kennedy showed himself to be far viler than most murderers.
Odds are he won't live long in prison anyway; even convicts have standards.
actually, Alito does NOT make the error in his dissent. He says that 6 out of 50 states have authorized it. He says nothing of DC or the Federal government.
Kennedy does say the federal government does not have the provision. If you include the UCMJ, this is incorrect, true. But nowhere does he count the jurisdictions as a whole and say 6 out of 52 when it should be 7 out of 53. If read to be speaking only of civilian law, there is no error there either.
However, the error here seems much graver for Kennedy. Kennedy is claiming a national consensus while ignoring a recently enacted federal law going the opposite direction. In contrast, Alito, who also failed to cite the statute, now has more ammunition for his dissent and his position is, if anything, strengthened.
At the end of the day, it looks as though the Court and counsel should have done more to research federal law(and perhaps the Solicitor's office should have done more to alert the Court to the federal law at stake). Since those things didn't happen before the Court issued its decision, leave it to a blogger to discover a federal law that inconveniently undermines the supposed national consensus relied upon by the majority.
And I certainly agree with those who say this discovery wont make a difference. Facts may inconvenience, but do not change, outcome-based decision making.
Response: Many people have pointed that out, including me, but it was Justice Robert Jackson who first wrote it in Brown v. Allen over a half century ago.
Thanks for the correction.
I guess, though, that the Court's general approach to overruling the other branches has its roots already in the Constitution itself, and in Marbury v Madison, which is so old that it's almost part of the Constitution itself. (In the UK, they would call a ruling like that part of the unwritten Constitution.)
The wiki page about Marbury quotes Federalist No. 78:
I could quote from Marbury itself, but the ruling seems to assume rather than argue the power of the courts to annul laws, and in any event the case is so famous that most quotes are already familiar enough.
FYI, in my country, the Netherlands, the constitution explicitly forbids the courts from "entering into the constitutionality of laws". They have to apply the law as written, and if they think it might be unconstitutional, they should simply interpret it to minimise the problem.
(Perhaps unfortunately, this rule is gravely undermined by the fact that treaties, including human rights treaties, have direct effect and can therefore be the basis for a court decision refusing to apply a statute.)
> IMO, the Constitution does not for the most part have a set meaning - it progresses with society as society's definition of the text progresses.
The I presume you would never support judicial review, then... I mean seriously, our society has evolved to the point that its own laws doesn’t reflect its zeitgeist?
Somehow I doubt that, though.
> For example, Those who ratified the 14th didn't want Brown's result.
Not true.
> Not to mention Freedom of Speech Jurisprudence!
We are less free to speak on political matters today, than we were 200 years ago. Progress, or regress?
> But I am not so hubristic as to assume that my interpretation of the Constitution is the Objective Truth and that any Justice who goes against it is doing so on purpose.
Maybe there is a valid argument to be made for why execution for child rape is unconstitutional, but Kennedy didn’t make it.
> the 1868 Congress (and all of its successors) authorized and funded segregated schools in the District of Columbia.
So a failure to exercise dominion is the same as approval. Interesting...
Talk about cherry-picking. And the 1870’s law on the subject was passed after the father of the Fourteenth Amendment, Thaddeus Stevens, had passed on. There are entire articles discussing the founding generation’s feelings about desegregation, and the evidence that they supported it was overwhelming. If you want an example, there is an orginalist argument for brown in the book “what brown should have said.”
Orin
> If we impeach Kennedy for this error, don't we also have to impeach Alito for making the error in his dissent?
I don’t support impeachment, but let me be devil’s advocate here: Alito’s error was a harmless one, and Kennedy’s was not. If Alito had won the day, then this would not be cause for reconsideration.
Disgusted
> The degree of opposition here to this common-sense ruling vindicating our society's fundemental decency is truly shocking.
The man raped his own 8 year old daughter so hard it ruptured the wall between her vagina and her anus. Where does her dignity come into your analysis? Not at all, apparently.
> Louisiana, if permitted do go down its barbarous path, would put this defendant in a WORSE place (a coffin in the ground) than what he did to the victim (she, after all, still lives).
The death penalty is not limited to situations that cause death. For instance, treason. Now who is worse? The man in this case, or Benedict Arnold. In my informal poll of people in my office, it is unanimously the defendant in the Kennedy case.
Or take an example from Alito’s opinion. The defendant in this case, versus John Doe who robs a bank and during the robbery his conspirator shoots a security guard, against the wishes and over the protests of Doe. Which is worse? And which, under Kennedy’s opinion, can be executed? (Hint: not the rapist.)
And I am frankly disgusted at how cavalier you are about what he did. Suppose you had an 8 year old daughter and she was about to be raped and the only way to stop it would cause you to die? Would you do it? Would you give up your life to protect her?
I sure as hell would.
> Has anyone actually noticed that the 8th amendment only restrains state action?
No one is arguing that the defendant violated the 8th amendment. But you admit that the impact on the victim is relevant, which makes your argument doubly silly; otherwise you wouldn’t keep saying, “he didn’t kill her.”
By the way, if she slits her wrists as a teenager, do you support the death penalty then?
Let me add that I find it strange in a society that tells us that there are some things more valuable than life, that you think it is common sense to say there is nothing worse than dying.
And yet every time this question arises here, I post the same question, and get no response. Still, here I go again:
This raises the epistemological question, namely, how can the Court KNOW what "society's definition of the text" currently is?
I'm concerned that the intellectual justification for 'judicial activism' relies on a kind of gnostic epistemology. Am I wrong?