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Post Calls for Kennedy Rehearing:

On Saturday, the Washington Post called for the Supreme Court to rehear its decision in Kennedy v.Louisiana holding unconstitutional the death penalty for child rape.

There was quite a goof in the court's 5 to 4 decision on June 25 banning the death penalty for those who rape children. The majority determined that capital punishment for child rape was unconstitutional, in part because a national consensus had formed against it. As evidence, the court noted that "37 jurisdictions -- 36 States plus the Federal Government -- have the death penalty. [But] only six of those jurisdictions authorize the death penalty for rape of a child." Actually, only two years ago, Congress enacted a death penalty for soldiers who commit child rape, as part of an update to the Uniform Code of Military Justice (UCMJ). Irony of ironies: The court has cast doubt on the constitutionality of an act of Congress based on the erroneous claim that the statute did not exist.
The Post notes that the various parties failed to identify the recently enacted UCMJ provision, so it does not place all the blame on the Court. The SG's office and the various parties were asleep at the switch -- as was the mainstream media, which only picked up the story after a blogger noted the mistake.

The Post supported the Court's Kennedy decision, but argues rehearing is necessary for the Court's crediblity. As the Post's editors explain, "The Supreme Court's legitimacy depends not only on the substance of its rulings but also on the quality of its deliberations." Even if the Court reaches the same result, it should not mischaracterize federal law.

Anon21:
I'm curious: when was the last time SCOTUS granted a petition for rehearing on an argued and decided case?

I'm guessing it won't be granted, but perhaps the dissenters will issue a dissent from the denial scoring some points at the majority's behest. It'll be a bit hypocritical, of course, given that none of the dissenting Justices discovered the provision either.
7.6.2008 1:11pm
Anon21:
I intended "at the majority's expense," not "at the majority's behest." What an odd error.
7.6.2008 1:12pm
Daryl Herbert (www):
Everyone knows the majority decided based on their personalities, and that the opinion itself is just window dressing to continue the giant charade that is our Supreme Court.
7.6.2008 2:08pm
The General:
lack of a specific law by majority of states = consensus. Really?

I guess that means, if (in protest?) 19 more states pass a statute allowing the death penalty for child rape, then the Court's decision would be invalidated by the new consensus. What an easy way to amend the Constitution.
7.6.2008 2:58pm
TaxLawyer:
The addition of one more jurisdiction does not really impact the Court's point: only a small minority of death penalty jurisdictions (and thus an even smaller minority of all jurisdictions bound by the Court's decisions) impose a death penalty for child rape. The consensus the Court determined exists still exists, and no rehearing is necessary to argue the point.

The error -- though an embarassing one -- can be corrected in the Court's final opinion (slip opinions are not the final word. As the Court's own website notes: "In case of discrepancies between the slip opinion and any later official version of the opinion, the later version controls.").

I'd hate to be the law clerk who was resposnsible for making sure that count of jurisdictions was accurate.

Scratch that. I'd love to be that clerk. Better a SCOTUS clerk who screwed up once than never a SCOTUS clerk.
7.6.2008 3:07pm
Malvolio:
Am I the only one worried that there was a standing death-penalty statute that (apparently) no one knew existed? The primary justification for any penalty is its deterrent effect — if you punish someone for a breaking a law he didn't know exists, it's revenge, not justice (and punishing him much more severely than he believed likely is close to the same thing.)

Of course, it's unlikely that any child rapist is under the impression that his activities are legal. Still, if we are arguing that the death penalty has some marginal deterrent value over life in prison, children are conversely exposed to the heightened risk of rape by society's failure to make the severity of the penalty widely known.

They say that "ignorance of the law is no excuse" — but when the entire Supreme Court, its clerks, the Solicitor General, the Attorneys General of several states, and dozens of other interested parties are likewise ignorant, doesn't that start to call the law into question?

Of course, the whole point of a Doomsday Machine is lost, if you keep it a secret! — Dr. Strangelove
7.6.2008 3:23pm
UWV (mail):
It is cruel and unusual. I'm not in favor of making it cruel and usual either though.

I would also hate to think that civilian punishments and legal rights can be determined by the military code of justice. It can be pretty authoritarian. Maybe if we lived in Sparta a military code imposed on the nation would make sense. But the last place I want to go for precedent is the military code of justice. In many ways that the military does act that way is a good reason that civilian law shouldn't unless, of course, our goal is to militarize civil society.
7.6.2008 3:35pm
Public_Defender (mail):
Although a blogger caught the error, no one else seemed to notice until the NYT's Linda Greenhouse covered it (giving credit to the blogger). This clearly shows the pro-law-enforcement, right-wing bias of both Greenhouse and her employer.
7.6.2008 3:46pm
CDU (mail) (www):
Am I the only one worried that there was a standing death-penalty statute that (apparently) no one knew existed? The primary justification for any penalty is its deterrent effect — if you punish someone for a breaking a law he didn't know exists, it's revenge, not justice (and punishing him much more severely than he believed likely is close to the same thing.)


Remember, the statue in question was part of the Uniform Code of Military Justice. My guess is none of the people who missed it (petitioners, amici, the Solicitor General's office, the Justices and their clerks) are eligible for prosecution under the UCMJ. Those who are in a position where they should know (members of the military, particularly military lawyers) weren't consulted.
7.6.2008 4:39pm
Wahoowa:
TaxLawyer:

Generally, I would agree with you. However, I think this is a different situation because it's a federal law. If they'd missed a single state's statute that wouldn't change the analysis much. But a federal law arguably represents the will of the entire United States writ large. Thus it has a huge bearing on whether a consensus exists--much more than a state statute.

I agree with some of the other commenters that this will in no way alter the outcome of this case--heck I think if 40 states and the federal government all had death penalty for child rape the court would still have come out the same way. But that's a separate issue.
7.6.2008 4:43pm
john dickinson (mail):
It seems really highly relevant to me. Blandly, 7 out of 37 jurisdictions isn't that much different from 6 out of 37. But this isn't just another jurisdiction, it's federal law, obviously requiring the support of a majority of both houses of Congress and the signature of the President. In a case where public opinion polling was so decidedly in favor of the penalty in question, the lack of political support seems crucial to the Court's reasoning. The idea being that, though we the mob may support the death penalty for child rapists, our better angels -- as expressed by the laws enacted by our representatives in government -- have actually concluded that it is abhorrent to our sense of proportionality. Now it turns out that there was just recently a national consensus of sorts in favor of the penalty for members of our military, in which our elected representatives in the federal government failed to be abhorred.

Now certainly there's a difference between our military law and our civilian law, but whether and how that distinction affects "cruel and unusual" consensus cases deserves its day in court.
7.6.2008 5:16pm
john dickinson (mail):
As to the separate question whether Justice Kennedy could possibly change his mind over this, given his general lack of nuance and his affinity for opaque reasoning, I highly doubt it. Although I wonder if this had been briefed properly in the first instance, and had therefore been a part of the discussion in his chambers from the beginning, whether it might have made a difference.
7.6.2008 5:22pm
Roger Schlafly (www):
Kennedy hasn't corrected the factual errors in his previous opinions on evolving constitutional rights, so why should he start now?
7.6.2008 5:38pm
Ohio Scrivener (mail):
The problem with missing a federal statute on point is that the Court has implicitly undermined a federal law without squarely addressing it (or hearing the federal government's defense of that statute).

The fact another jurisdiction (even the federal government)authorizes the death penalty for child rape is not likely to change the Court's outcome-based decision making. However, if the Court is going to strike down a federal law, it would behoove the Court to hear the government's point of view first. (Paging the Solicitor)
7.6.2008 5:45pm
Poncherello:
Side note: Did both McCain and Obama vote in favor of the UCMJ bill two years ago? It would be interesting if they both publically called for a rehearing under this idea that the Court missed the "national consensus" as exhibited by a vote of the nation's reps, including themselves as reps of AZ and IL. I seem to remember reading that both the candidates said that they did not agree with the Kennedy decision, so I guess it's not entirely out of the question.
7.6.2008 5:48pm
TGGP (mail) (www):
If the law passed by Congress was not a constitutional amendment, it should not affect the constitutionality of other laws.
7.6.2008 6:01pm
Jim Rhoads (mail):
What is "usual" enough to pass constitutional muster? Who measures "usualness" How is it to be measured? Should what is "usual" be measured by federal standards? If so, why is the Judicial branch superior to the combined Executive and Legislative branches in determining the death penalty's "usualness" for child rape?

If the death penalty is "usual" enough to be imposed on those serving our country in time of war, why isn't it "usual" enough to impose on a common child rapist in Louisiana?
7.6.2008 6:13pm
whit:

However, I think this is a different situation because it's a federal law. If they'd missed a single state's statute that wouldn't change the analysis much. But a federal law arguably represents the will of the entire United States writ large.


Not really. It is federal law, but it's a federal law that ONLY applies to military, and military law is generally stricter/less forgiving/gives harsher penalties than civilian law. So, the comment about "the will of the entire United States" seems so much hyperbole. IIRC, adultery is also a crime under the USCMJ. Does that mean criminalizing abortion "represents the will of the entire United States?" Of course not. It represents the fact that soldiers are held to a different standard of conduct than civilians, and the USCMJ reflects that.
7.6.2008 6:23pm
whit:
TYPO: criminalizing "adultery" not abortion
7.6.2008 6:32pm
TerrencePhilip:
If the law passed by Congress was not a constitutional amendment, it should not affect the constitutionality of other laws.

I don't see why not, given the "evolving standards of decency" constitutional standard which claims to tie constitutionality to the legislative decisions- or trends- adopted by politicians. Indeed since Congress speaks for the entirety of the country, this law is arguably more significant than any individual state law considered in the opinion, as it received the attention of representatives from every state.

Of course, this standard was devised in the 1970s when the liberal justices thought then-current social trends would continue indefinitely, the death penalty would be repealed in more and more states, setting the stage for our wise guardians to finally pull the plug on it ("completing" our democratic process, they might have conceived it) sometime in the 1980s. Turns out they were too clever by half. Oops!
7.6.2008 6:41pm
CDR D (mail):
>>>It is federal law, but it's a federal law that ONLY applies to military, and military law is generally stricter/less forgiving/gives harsher penalties than civilian law.

***

Are there any federal laws dealing with this subject wrt civilians? If so, what are the prescribed penalties?

Assuming no commerce clause consideration, where would the federal government (outside the military) have any power in this area to begin with?
7.6.2008 6:52pm
George Weiss (mail) (www):
cdr D-

yes there are civilian federal rape laws. no the penalty for the civilian crime of rape in federal jurisdiction does not cary possible death. the jurisdiction is direct federal jurisdiction when on federal land (ex. rape in a federal building, rape in a national park, in federal waters etc..)
7.6.2008 7:10pm
Sam Hall (mail):
One thing: What is a "child?" From what I can see, each state has its own definition and none of those agree with the dictionary

chil·dren (chldrn)
1. A person between birth and puberty.
7.6.2008 7:50pm
john dickinson (mail):
I've heard lots of people cite the fact that the UCMJ prohibits adultery or various speech acts that would be constitutionally protected for civilians as a reason why this law is irrelevant. But those seem to deal with rights very different than that against "cruel and unusual" punishment, which is more based on whether the punishment in itself is repugnant than whether the act can be prohibited. Besides, there doesn't really seem to be a particular military interest or national security concern in preventing child rape that is any different than the interest in preventing child rape in general. Regardless, that question is one that deserves to be addressed by the Court in rehearing.
7.6.2008 7:58pm
Public_Defender (mail):

However, if the Court is going to strike down a federal law, it would behoove the Court to hear the government's point of view first. (Paging the Solicitor)


The SG had the opportunity, but but didn't do thorough enough research before declining to get involved. The purpose of rehearing generally is not to allow counsel to cure counsel's own neglect. It certainly isn't to allow a counsel for an amicus (even the Government) to cure its own neglect.

Also remember that the four most conservative members might apply a conservative rehearing standard, so it isn't even guaranteed that they will support rehearing.
7.6.2008 8:07pm
CDR D (mail):
>>>the jurisdiction is direct federal jurisdiction when on federal land...

***George W

Thanks, and I should have remembered that.

Interestingly, I once served on a federal military reservation which was divided wrt to jurisdiction. Part of it exclusively federal, part of it exclusively state, and the remainder concurrent. (This is with regard to civilians charged with a crime).
7.6.2008 8:30pm
Perry Dane:
This whole ruckus leads me to wonder whether the constitutional standards for whether certain crimes might merit the death penalty are the same with respect to the UCMJ as with respect to civilian law. To be sure, Loving v. United States assumed that the court's death penalty jurisprudence did generally apply to the UCMJ, but that case involved aggravating factors, etc., not whether a particular crime might constitutionally merit the death penalty.

Also note here the following intriguing passage in the Kennedy case:

"Our concern here is limited to crimes against individual persons. We do not address, for example, crimes defining and punishing treason, espionage, terrorism, and drug kingpin activity, which are offenses against the State."

Isn't the entire body of military criminal law, in a sense, about "offenses against the State," i.e., about the distinct sovereign interest in good order, right conduct, and discipline in the armed forces? That doesn't mean that the UMCJ could subject any offense to the death penalty, only that the standard might be different in the military and civilian contexts.
7.6.2008 8:38pm
DangerMouse:
The Post supported the Court's Kennedy decision, but argues rehearing is necessary for the Court's crediblity.

Too late.
7.6.2008 8:47pm
TerrencePhilip:
Interestingly, I once served on a federal military reservation which was divided wrt to jurisdiction. Part of it exclusively federal, part of it exclusively state, and the remainder concurrent. (This is with regard to civilians charged with a crime).

Well that IS interesting- what military post? And what was the reason for divvying it up like that? I assume you mean that if a civilian committed a crime in one part of the reservation the feds would prosecute, if he did so in another the state authorities would prosecute, even though the crime took place on federal land . . .
7.6.2008 9:08pm
CDR D (mail):
>>>Well that IS interesting- what military post? And what was the reason for divvying it up like that? I assume you mean that if a civilian committed a crime in one part of the reservation the feds would prosecute, if he did so in another the state authorities would prosecute, even though the crime took place on federal land . . .

*** Terrence

Coast Guard Island in Alameda. It was divvied up back in the early 20th Century and it then was known as Government Island, since the feds did the dredge work that created it.

The exclusive state and concurrent juridictional areas are the most easily accessible. The exclusive federal jurisdiction is the most remote. There was a memorandum of understanding with the local police that they would respond to any situations, although Coast Guard Security personnel were "deputized" under a section of the CA penal code (836?).

So far as I know that MOU, or a variant, is still in effect.

(I've been retired for 21 years)
7.6.2008 9:26pm
DiverDan (mail):

If the law passed by Congress was not a constitutional amendment, it should not affect the constitutionality of other laws.


While this sounds entirely logical, when the Court rules that a statute is unconstitutional based entirely upon a supposed "emerging national consensus", the existence of Congress' judgment that the death penalty was appropriate in the case of a soldier who raped a child certainly seems relevant to the existence of that same "emerging national concensus." It just shows the inherent logical weakness of the Court relying upon such a vague notion as "consensus" to determine the scope of constitutional rights.
7.6.2008 9:39pm
AntonK (mail):
And the Stevens dissent in Heller is a train wreck as well. See here.
7.6.2008 10:15pm
Richard Aubrey (mail):
This will give the majority a great opportunity.
They get to say, "Remember that fact we pretended was a foundation of our decision? Well, it's not a fact, after all. But we don't care. Sometimes we lie. Sometimes we're ignorant. But, if caught either way,...we don't care."
This will surely polish the court's image.
7.6.2008 10:28pm
Gulf Coast Bandit (mail):
It seems as though there's an emerging national consensus that the Court should rehear the case.
7.6.2008 10:29pm
PLR:
Everyone knows the majority decided based on their personalities, and that the opinion itself is just window dressing to continue the giant charade that is our Supreme Court.

Indeed. Any court that intervenes to prevent the premeditated murder of its nation's citizens is corrupt.
7.6.2008 11:03pm
Asher (mail):
Am I the only one worried that there was a standing death-penalty statute that (apparently) no one knew existed? The primary justification for any penalty is its deterrent effect...

We could argue with your second sentence all day, but I think the apparent ignorance of the penalty cuts both ways. Some opponents of the death penalty for child rape argue that it gives child rapists an incentive to kill their victims. I think this attributes a lot of rational calculation to some (presumably) pretty irrational actors, but if they don't even know, you can't make that argument. I'd be shocked if, until this case, any more than 10% of Louisianans knew what the penalty for child rape was.
7.6.2008 11:48pm
Ohio Scrivener (mail):
"The purpose of rehearing generally is not to allow counsel to cure counsel's own neglect. It certainly isn't to allow a counsel for an amicus (even the Government) to cure its own neglect."

Here, however, the neglect is also on the Court. The best motions for reconsideration should bring to a court's attention relevant law or facts that the court overlooked or failed to consider in its original decision. And if the current failure to address a federal law on point had come from a lower court, I could see a motion for reconsideration getting some traction.

But we are in agreement on the likelihood of the Supreme Court reconsidering its decision. While the Supreme Court made a mistake and is now being chastised for it in the press, I doubt the Court will reconsider its decision. The majority opinion proclaims a national consensus against the death penalty for child rapists. This assertion, coming from the unelected branch of our government, is a poor fig leaf for the outcome the majority wanted to reach. I doubt the same majority has much interest in granting reconsideration so that the parties can debate the size of the fig leaf.

Finally, Public Defender -- your criticisms of the SG's office may be accurate. I do not know why the SG did not raise this federal law with the Court (which is one of the reasons I would like to see if the SG's office takes any action now). However, the government's absence in a decision where the Court may have backed into overturning a federal statute does not exactly enhance the credibility of the decision.
7.7.2008 12:13am
SIG357:
If the law passed by Congress was not a constitutional amendment, it should not affect the constitutionality of other laws.


Given that the Constitution is "evolving", how can any of us safely predict which laws are constitutional, or will be so tomorrow?
7.7.2008 12:25am
kdonovan:
US personnel have been accused in a handful of horrific child-rapes (and other rapes) in Okinawa that have caused major problems concerning US basing rights in Japan. The Okinawans and Japanese more generally perceived the US military as sheltering the accused service members. If the UCMJ allowed for the death penalty for these crimes it might make SOFA provisions allowing for the US to try its own service members go down better with the Japanese. (Japan still has the death penalty though it is rarely invoked.)

Rapes by GIs is often a very emotional issue with host countries when SOFA agreements are implemented. The US wants to maintain control over the legal regime that applies to its soldiers to maintain good order and discipline by investigating and punishing those who commit crimes as well as avoiding subjecting its troops to various legal systems in other countries. However if rape is perceived to be treated leniently by the US, host countries will come under considerable domestic pressure to alter these SOFAs and their populaces will come to see the US military as an occupying army running amok.

Given this the draconian UCMJ provisions involving rape and child rape make a lot of sense. They serve to deter such conduct where it can be deterred. And they serve to punish such conduct so severely that the host population will have little ground to complain that GIs are getting away with rape.

As an ex-ante situation I would much rather be a US soldier knowing that a rape conviction may bring about the death penalty but that the trial will be handled by a US court martial rather than a situation in which the SOFA said the whole issue will be handled by the host county's judicial system. (Consider facing the Japanese judicial system for example as an alternative the to UCMJ.)

Given the above I think there is a reasonable argument that rape and child rape by service members (at least when deployed overseas) would count as a crime against the state.

Kevin
7.7.2008 12:26am
Dave D. (mail):
Malvolio : " The primary justification for any penalty is it's deterent effect - If you punish someone for breaking a law he didn't know exists, it's revenge, not justice "
..Bunkum and twaddle, combined. The death penalty has the maximum deterent effect ; the offender will not reoffend. How can any punishment meet that 100% effectiveness except the death penalty. I take it you support the death penalty because it has that great deterent effect.
..We don't punish people for raping children if they are incapable of knowing it is wrong . You seem to conflate the knowledge of the accused that he is breaking the law with his knowledge of the penalty. Almost nobody accused knows what the penalty for conviction will be. Not the suspect, nor the lawyers, nor the judge. So, to you, that means he can't be justly sentenced, if convicted. Wrong.
7.7.2008 1:01am
Dave N (mail):
Interestingly, I once served on a federal military reservation which was divided wrt to jurisdiction. Part of it exclusively federal, part of it exclusively state, and the remainder concurrent. (This is with regard to civilians charged with a crime).
Federal Indian reservations actually often have THREE separate court systems: The state courts, the federal courts, and the tribal courts.

Part of the sovereignty of Indian reservations is that state law is inapplicable to enrolled members but applicable to non-members who commit crime on the reservation. Federal courts have jurisdiction for felonies under both the Assimilated Crimes Act (18 U.S.C. 13) (which federalizes state law) but only to the extent it does not conflict with substantive federal law for the same offense.

Finally, tribal courts have jurisdication over enrolled members but not over non-Indians. Thus, two people could jointly commit the same crime on an Indian reservation and end up in two separate courts.
7.7.2008 1:09am
Dave N (mail):
PLR,

You wrote:
Any court that intervenes to prevent the premeditated murder of its nation's citizens is corrupt.
If you are talking about preventing a lawful execution, I would disagree with your argument that putting the condemned to death is "murder"--since murder is commonly defined as an unlawful killing. An execution is not unlawful since it is sanctioned by the state--even if otherwise killing the condemned as he walked to the death chamber would be.

I would agree with you, though, that an execition is a homicide--since one human is deliberately killing another human. But not all homicides are murders, even though we tend to think of the two terms as being synonymous.
7.7.2008 1:14am
PLR:
If you are talking about preventing a lawful execution, I would disagree with your argument that putting the condemned to death is "murder"--since murder is commonly defined as an unlawful killing.

True. I wasn't using the term "murder" in its legal sense. The alternative term "premeditated homicide" isn't commonly used.
7.7.2008 1:25am
Splunge:
The Post...argues rehearing is necessary for the Court's crediblity

Ha ha. Credibility to whom? Post editors and other such psychological curiosities? Taking the long view -- Dred Scott, Korematsu, Plessy, Roe, Bush et al. -- it's hard to see how a historically well-informed Joe Citizen can have much faith in the institution. So far as I can tell, the Court only gets things right by accident or after decades of being hit with the cluestick.
7.7.2008 1:52am
PersonFromPorlock:
Anyway, isn't all this impuning error to the Court lèse majesté ?
7.7.2008 8:56am
A.W. (mail):
The General

> What an easy way to amend the Constitution.

Well, judicial fiat is even easier.

But yeah, you put your finger right on it.

UWV

> Maybe if we lived in Sparta a military code imposed on the nation would make sense.

Its not about imposing anything. The Supremes are not about to make the death penalty mandatory in any case. The issue is if a state can choose to do that.

TGGP

> If the law passed by Congress was not a constitutional amendment, it should not affect the constitutionality of other laws.

Agreed, but then the bone you have to pick is with the Supremes for making “consensus” part of the definition of cruel and unusual. And mind you, without any clear idea how to establish consensus.

Whit

> It is federal law, but it's a federal law that ONLY applies to military

Well, generally, federal law doesn’t address crimes like rape. The military is one of the few areas where there was a need for a general criminal code. Federal criminal law usual concerns itself with economic matters, and the protection of civil and criminal rights.

PLR

> Any court that intervenes to prevent the premeditated murder of its nation's citizens is corrupt.

Sarcasm noted.

Murder is unjustified killing. Morally and legally, an execution is fully justified in the case of the scumbag in Kennedy v. LA. He raped his 8 year old daughter so hard that it ruptured the wall between her vagina and anus.

And yes, it is corrupt to make a ruling based on bad facts and bad reasoning, because you like the result.
7.7.2008 9:00am
PLR:
Murder is unjustified killing.

Simply unpack your adjectives.
You can do it with adjectives.
Tell them 'bout it with adjectives.
You can shout it with adjectives.

--Schoolhouse Rock, "Unpack Your Adjectives"
7.7.2008 10:03am
Ben Franklin (mail):
The arrogance of the court has become such that they don't even bother hiding the fact that they are implementing their own policy preferences. No one could be out of touch enough with the American people to believe that the majority are against the death penalty for child rapists. That they chose an obvious falsehood (and an irrelevant issue)for the basis of their opinion seems to me to just be their way of rubbing it in everyone's faces.

Their lack of intellect is something they can't help. Their lack of shame is something they have carefully cultivated through long practice.
7.7.2008 10:37am
Thomas_Holsinger:
Justice Kennedy does not seem to consider the Court's credibility to be an issue. This is correct given his opinions.
7.7.2008 10:53am
A.W. (mail):
PLR

Okay, let's do something that Kennedy wouldn't do in his majority opinion—engage in a little legal thinking.

Who is worse? (A) The defendent in Kennedy v. LA or (B) Benedict Arnold?

Who is worse? (A) The defendant in Kennedy v. LA, or (B) a man who conspires to rob a bank, and in the process his co-conspirator shoots and kills a security guard?

Now, which of these persons can be executed after this atrocious ruling? The answer is B and B.

But here let Beldar explain it to you:

> I condemn this Supreme Court ruling, as I have all of the Supreme Court's recent Eighth Amendment decisions that purport to be based on "evolving standards of decency." That entire line of cases is a transparent lie, and an example of the most pernicious sophistry that lawyers can create: How else but through double-talk and evil magic could the least representative branch of either the federal or state governments strip the most representative branches of their intrinsic power to weigh, and then determine, what community standards are to be, and whether and how they ought to "evolve"?

http:// beldar.blogs.com/beldarblog/ 2008/07/the-important-p.html

(cut and paste link, removing spaces)

I mean, really, if consensus is all the rage, then how come the supremes have not simply called for a national referendum to get a sense of the community? it would bring some actual intellectual rigor to their analysis.
7.7.2008 11:00am
ejo:
it is the kind of lie that wouldn't be acceptable in traffic court. if, instead of analysis, you wrote in a paper that the evolving standards inform you, based on your subjective opinion, that x should no longer be allowed, you would likely be failed (or given a fast track to S. Ct. appointment). yet, we lawyers are just supposed to uphold the integrity of the judiciary by whistling past these little inanities.
7.7.2008 11:10am
lawguy:
Can somebody please explain this to me (not being facetious):

1) 8th amendment forbids something iff it's cruel and unusual punishment.

2) Something is punishment iff it is the method in which a person is harmed, and does not include the reason for which they are harmed. I.e., punishment = the mode of harm, not the reason the harm is inflicted.

3) by 1) and 2) the 8th amendment never forbids the state from harming a person in a particular way for a particular crime per se; it ONLY forbids specific modes of punishment irregardless of predicate offense. E.g., it could never be cruel and unusual punishment to punish petty thievery with life in prison, assuming life in prison is not itself forbidden.

4) Death is not forbidden in and of itself.

5) Therefore by 1-4, child rape can be punished with death.

Now, I realize the court has concocted some notion of "proportionality" into the 8th amenmdent, which is measured by "national consensus." But this is an absolutely horrendous reading of the basic language of the 8th amendment, no? Isn't it just ignoring basic semantics? Where am I wrong?
7.7.2008 12:35pm
A.W. (mail):
Lawguy

Well, to play devil's advocate (b/c i actually agree with you), what they would say is that the term "unusual" does demand proportionality, equal protection and all kinds of other things.

I don't buy it, but there it is.
7.7.2008 12:38pm
lawguy:
A.W.:

Well, that's a plausible reading I suppose, since "unusual" is arguably ambiguous in the context. But read as a whole, I do think our reading is more plausible since "cruel and usual" both modify "punishment" and "cruel" is clearly only a question of mode and and not reason for imposition. So, you can't chop fingers off, period. And you can't force somebody to dance in a pink skirt in the street either, even though it's not necessarily "cruel" but obviously unusual.
7.7.2008 12:46pm
A.W. (mail):
> And you can't force somebody to dance in a pink skirt in the street either, even though it's not necessarily "cruel" but obviously unusual.

Actually, you might read the phrase "cruel and unusual" as requiring both--both that it be cruel and unusual. So pink tutu's are okay. and indeed, there are judges who do give out sentences in that same zone of strangeness.

As for unusual, here is a paper on what unusual was supposed to mean. i haven't read it, but it might be interesting to you. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1015344
7.7.2008 12:56pm
Oren:
A.W. imprisonment for life is not C&U, so therefore a life sentence for speeding is not C&U?
7.7.2008 1:04pm
josh:
Isn't this just a question of waiver? Never seems to be a problem, for example, when a pro se litigant fails to raise points on appeal. Why the outrage now? i wonder ...
7.7.2008 1:15pm
A.W. (mail):
Oren

I would say no. Not wise, of course, but not unconstitutional in any sense i can discern.

I really think it its original understanding, the 8th Amendment was not meant to be very much protection. The 8th was about preventing things like drawing, hanging and quartering for treason. Remember, they would hang a man for stealing a horse; so life in prison for a speeding ticket doesn't seem very "unusual" or "cruel" by that understanding.

So if the people decide to put in draconian penalties for speeding (see, e.g., right now the fines we have for speeding here in Virginia), that's their right, so long as they observe equal protection and all that. And I am very comfortable with that, because the people can be trusted not to go too far off the reservation on this sort of thing. And ideally the constitution should be seen as risk avoidance device. When contemplating whether to amend it or not, you might want to control for a very high risk of moderately bad behavior, or on the other end of the spectrum, a very high risk of very dangerous behavior. Your confidence in your policy judgments figures into it too. It am dead certain that the right to bear arms is one of the key bulwarks for liberty, so if the Supremes came out the other way on Heller, I would have supported a constitutional amendment overturning the decision. On the other hand, I don’t favor the current proposals for a gay marriage amendment. I would instead favor language that merely left the issue up to the legislature. I don’t trust the courts on this, but I do trust the people. Implicitly the founders were engaged in a similar analysis, although they didn’t favor very much law and economics language on the subject.

Anyway, so once you understand these amendments as about risk aversion, then you feel much better about allowing the government to decide if a person should go to jail for life for a speeding ticket, because you can retort "like that would happen anyway!"
7.7.2008 1:32pm
Deoxy (mail):
"cruel AND unusual".

Considering that judges have the power to impose all kinds of odd punishments (the woman who held a sign outside a Wal-mart declaring herself a shoplifter, for instance), and that judges have had this power, best I can tell, since before the Revolutionary War, I always believed this clause to be a restriction on that prerogative.

Thus, a penalty proscribed by duly enacted Legislative branch law is, by definition, not "unusual" - indeed, it is the USUAL punishment for such a crime.

Death penalty for shoplifting? If that gets past the legislature, the people will simply stop convicting shoplifters (yay, jury trial!) - bring it on.

When the legislature can't make any law without the approval of the Judicial, and the Judicial can create new "rights" from whole cloth, it seems apparent that the Judicial branch, and the SCOTUS in particular, is simply ruling the country as they see fit, subject to no one.

Of course, in theory, the Congress could impeach them, but that simply isn't done, you know.

Sigh.
7.7.2008 2:44pm
PLR:
PLR: Okay, let's do something that Kennedy wouldn't do in his majority opinion—engage in a little legal thinking.

Not interested. My posts in this topic deal with ethics, and not situational ethics either. All the legal minds here assembled will concur that ethics and the law overlap as a concidence and not as a rule.
7.7.2008 2:55pm
A.W. (mail):
Deoxy

Well, in typical legal language, "and" means it has to be both. if you want it to be disjunctive, you need it to be "or" or "and/or."
7.7.2008 2:56pm
A.W. (mail):
PLR

Okay, you want ethics? Is it ethical to swear an oath to uphold the constitution when you really mean uphold your own judicial fiat?

So in fact the ethical outcome here is the same as the proper legal outcome: you obey the constitution, and not your whims. Whether the constitution is ethical or not is another matter. To that question, I would say this. The value a society places on a right is determined by the remedy for its violation. Anything less than death for this animal, then, is a cheapening of the right of a child not to be raped. Indeed, Kennedy repeatedly talks about our need to respect dignity, by which he means the dignity of the defendant. The dignity of the girl who was raped, or the girls who will now be raped because of this decision, doesn’t even cross his mind.

But please, tell us, if any right is valuable enough for you to justify killing in order to uphold it? Or are you just plain against the death penalty in all cases? And if you support it in some cases, then where is the dividing line for you?

Or let me turn the question around. Is there anything you would die for? If your daughter was being raped, for instance, and the only way to stop it would ensure your own death, would you stop it anyway? Would you die for freedom, etc.? And if so, haven’t you implicitly admitted that there are things more valuable than life?
7.7.2008 3:20pm
LM (mail):
A.W.,

The dignity of the girl who was raped, or the girls who will now be raped because of this decision, doesn’t even cross his mind.

... and you know this how?
7.7.2008 5:38pm
A.W. (mail):
> ... and you know this how?

Well, okay, i am using rhetorical flourish. how about this... his opinion makes no effort to take that into account. its all pretending their is a consensus nevermind the way he created the facts on the ground, rather than merely reported it.
7.7.2008 6:29pm
PLR:
Well, in typical legal language, "and" means it has to be both. if you want it to be disjunctive, you need it to be "or" or "and/or."

We're not dealing with "typical legal language" in the modern sense, we're dealing with a document more than 200 years old. And it is reasonably clear as a historical matter that the Eighth Amendment means "cruel punishment shall not be inflicted, and unusual punishment also shall not be inflicted."
Okay, you want ethics? Is it ethical to swear an oath to uphold the constitution when you really mean uphold your own judicial fiat?

Well let's look at the oath:
"I, [NAME], do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as [TITLE] under the Constitution and laws of the United States. So help me God."

Nope, I don't see anything there that says exactly how to vote in Eighth Amendment cases, or any other cases. In fact, a federal judge can be a completely disingenuous nutball like Janice Rogers Brown and fulfill the oath.
7.7.2008 6:40pm
Jim Rhoads (mail):
Why the gratuitous swipe at JRB, PLR? Did she rule against you recently? I had the impression that she has been a fairly unexceptionable Circuit Court of Appeals Judge.
7.7.2008 9:20pm
A.W. (mail):
PLR

> And it is reasonably clear as a historical matter that the Eighth Amendment means "cruel punishment shall not be inflicted, and unusual punishment also shall not be inflicted."

Really? So, forcing a man to walk around in a chicken suit for a day is banned by the constitution? Because that is unusual, but unless you are talking death valley not particularly cruel.

And, no, as a historical matter, “and” means both, not either one.

> Nope, I don't see anything there that says exactly how to vote in Eighth Amendment cases, or any other cases.

You’re being disingenuous. I didn’t say that you had to go for a specific outcome. I said you had to be upholding the constitution and not your whims. If you are trying to read the constitution as it is written and you just screw up, that is one thing. But to ignore the constitution is another.

The entire concept of evolving standards is an empty lie. The idea that the constitution can be changed because the court divines the zeitgeist of the time a certain way doesn’t even pass the laugh test. No serious constitutionalist could adhere to that. And Alito demonstrated that even if you subscribed to that silly lie, it doesn’t matter, because the court had no basis to judge the zeitgeist of the time.

I mean seriously, if they are going to base it on that, then why don’t they just order for there to be a referendum on the next ballot: do you believe that the 8th amendment allows for the execution of child rapists? If zeitgeist is the standard, that is the only way to find it. But of course Kennedy doesn’t want to do that, because that might not come out his way—and that is what this is about: the desire for power. He contorts himself pretty lamely trying to say there is a consensus against that punishment, because states haven’t passed laws allowing for it, even though the supremes had pretty much said the laws would be unconstitutional. Nor does he have an answer to the questions I put to you above, just as you don’t. That is, why is this guy’s crime less than the examples above (Benedict Arnold, etc.).

What he did was not law. If you want to look at a facial attempt to actually interpret the constitution, I suggest you read Scalia’s opinion in Heller. Or Marbury v. Madison, McCullough v. Maryland, and so on. Those are opinions that actually try to interpret the constitution, or if you are cynical, merely pretend to do so.

As for Brown, I have read PFAW’s “indictment on her.” It was so unremarkable that after about 10 quotes, I stopped reading. Oh my Gosh, you mean she thinks that the second amendment is at least as fundamental as the made-up right to privacy! Per shame! Per shame! http://www.pfaw.org/pfaw/general/default.aspx?oid=12751 The fact you think someone so unremarkable is a nut just demonstrates what blinders you have.
7.8.2008 4:38am
PLR:
Why the gratuitous swipe at JRB, PLR? Did she rule against you recently? I had the impression that she has been a fairly unexceptionable Circuit Court of Appeals Judge.

It was somewhat random, but I think she's emblematic of Bush's judicial appointments generally. They're known for being ideologues, and their reputations as judges are rather mixed.
7.8.2008 2:11pm
PLR:
The entire concept of evolving standards is an empty lie. The idea that the constitution can be changed because the court divines the zeitgeist of the time a certain way doesn’t even pass the laugh test. No serious constitutionalist could adhere to that.

How strange that so many constitutional lawyers consider it a near logical imperative that "unusual" means "unusual at the time the punshment is inflicted" as opposed to "unusual at the end of the eighteenth century."

If only their liberal legal training hadn't blinded them to the wisdom of A.W.
7.8.2008 2:16pm
A.W. (mail):
PLR:

Again, if the issue is the consensus of the age, why not a referendum? Or even a poll? Why do you keep dodging that simple question. If it’s the feelings of the people, then why not ASK THEM, for cryin’ out loud?!

The answer is, because the Supreme Court doesn’t want to hear the answer. Or more precisely, Kennedy doesn’t.

And yeah, pretending the constitution changes according to the mood of the people is the exact opposite of what a constitutional right means. I gave the example of drawing, hanging and quartering before, which used to be the punishment in England for treason. So I suppose under your theory if enough people support that, it suddenly isn’t cruel and unusual?

The point of a constitutional amendment is to take certain questions away from the feelings of the majority. This view of the constitution then is a pointless gesture. The smarter way to write it would be “Congress shall declare by referendum what punishments are forbidden in the Federal criminal process.” For if the issue is the feelings of the American people, then what better way to determine it than by a statute? Or perhaps you would prefer a referendum. But certainly the bogus tea-leaf reading that the Supremes engaged in is not the way to do it; not statistician would say that the court did a good job in counting heads on that issue. They would identify obvious biases all over the place.

And as far as the liberals who believe this is a logical approach, notice I used the term “serious constitutionalist.” That excludes anyone who merely pretends to believe in constitutionalism, which apparently includes you.
7.8.2008 4:34pm