July 22, 2008

"I am personally opposed to the death penalty, but I am also opposed to courts taking fundamental decisions away from American voters."

Says lawprof Neal Kumar Katyal, who is representing the state of Louisiana as it seeks to reopen the Supreme Court case Kennedy v. Louisiana:
Jeffrey L. Fisher, a law professor at Stanford who represented the defendant in the case, Patrick Kennedy, said “rehearing is completely unnecessary.” Military law does not apply to Mr. Kennedy, a civilian, Professor Fisher said, and Congress has not made child rape a capital offense for civilians.

Professor Fisher added that military law has long made rapes of both adults and children capital offenses in some circumstances. The innovation of the 2006 law was only to break out children as a separate category.

According to the petition filed Monday, the 2006 law is powerful evidence of the direction of public sentiment. “While Congress has not, as yet, applied the death penalty to child rape in the civilian context,” the petition said, “the recent trend (not to mention the general parity between military and civilian law today) indicates that it may very well do so, if given the opportunity.”
As I have already said, I think it is very important for the Supreme Court to rehear the case. The Court's analysis of "the evolving standards of decency that mark the progress of a maturing society" surveyed the law throughout the United States and drew conclusions without realizing that Congress, which represents all the states, had recently approved of the death penalty for the rape of a child (in a law applying to crimes in the military). From the now embarrassingly inadequate opinion:
Louisiana reintroduced the death penalty for rape of a child in 1995. See La. Stat. Ann. §14:42 (West Supp. 1996).... Five States have since followed Louisiana’s lead: Georgia, see Ga. Code Ann. §16–6–1 (2007) (enacted 1999); Montana, see Mont. Code Ann. §45–5–503 (2007) (enacted 1997); Oklahoma, see Okla. Stat., Tit. 10, §7115(K) (West 2007 Supp.) (enacted 2006); South Carolina, see S. C. Code Ann. §16–3–655(C)(1) (Supp. 2007) (enacted 2006); and Texas, see Tex. Penal Code Ann. §12.42(c)(3) (West Supp. 2007) (enacted 2007); see also Tex. Penal Code Ann. §22.021(a) (West Supp. 2007)...

By contrast, 44 States have not made child rape a capital offense. 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....

The evidence of a national consensus with respect to the death penalty for child rapists, as with respect to juveniles, mentally retarded offenders, and vicarious felony murderers, shows divided opinion but, on balance, an opinion against it. Thirty-seven jurisdictions—36 States plus the Federal Government—have the death penalty. As mentioned above, only six of those jurisdictions authorize the death penalty for rape of a child....
This crucial passage is junk now.

33 comments:

Bissage said...

It should behoove the majority in Kennedy v. Louisiana to look back over that crowd and realize it does not have so many friends as it once thought.

The Exalted said...

its the job of the interested party to highlight such an issue for the court.

obviously(?) they failed.

you're placing the blame in the wrong place.

Bissage said...

Gee, I had no idea the clerks did nothing more than cut and paste the briefs.

I'll have to stop thinking they're all so smart.

Richard Dolan said...

"This crucial passage is junk now."
Junk indeed. This part of the opinion wasn't all that persuasive even before this error was picked up. But the mistake was a whopper.

I'd take issue with Ann's description that the passage was "crucial." At most, the comparative analysis about the supposed "national consensus" was rhetorical window-dressing. I say that because it's hard to believe that, had the majority picked up the provision in the UCMJ making child rape a capital offense in certain circumstances, that fact would have had any impact on the result. Instead, this passage was just how they dressed up a conclusion reached for other reasons. The only moral compass that ever mattered in this case was the justices' personal views about the death penalty.

If a politician running for office were caught in an equally embarrassing slip-up, it's unlikely that the politician would just 'fess up to the mistake. In contrast, any scholar caught making this kind of mistake would bend over backwards to fix it quickly, with due apologies all around. Anyone care to guess which reaction we'll get from Kennedy and Co.? (Mine: They'll change the slip opinion to add a "but see" and dismiss the UCMJ provision as irrelevant because it is applicable only in the military context, and then deny the petition.)

Trumpit said...

I personally don't think there is as big a problem here as you think there is. I don't think it is inconsistent to allow the death penalty for rapists/child rapists for military personnel and not in the civilian sphere. Soldiers in foreign lands whether engaged in actual combat or not, need to be greatly discouraged from raping the local citizenry.

When the armies of the Soviet Union occupied Germany at the end of WWII, the brutal rapes and gang rapes of German woman of all ages that occurred, is common knowledge. I doubt many Russian soldiers were punished for their crimes because of Russians' desire to exact revenge from Nazi Germany. An older Japanese friend of mine said that rapes by U.S. soldiers of Japanese women and girls was commonplace when the U.S. Army occupied Japan after it's surrender. It still left a bitter taste in his mouth.

So, I think using the military code to justify rejecting the "evolving nature" of civilian laws is suspect to begin with. One may not like the methodology the Supreme Ct. used in deciding this case, but I'd be surprised if the case is reopened because of what congress did vis-a-vis the military code.

Joe M. said...

Trumpit:
I don't think it is inconsistent to allow the death penalty for rapists/child rapists for military personnel and not in the civilian sphere. Soldiers in foreign lands whether engaged in actual combat or not, need to be greatly discouraged from raping the local citizenry.

And citizens at home do not "need to be greatly discouraged from raping" the local children?

You've got some strange ideas about justice, friend.

kengoodsmith said...

Ann's right on this one. The Court's decison to look to "evolving" standards necessarily leads to a detailed factual inquiry. Having stated that few states allow the penalty in these circumstances (ignoring that many were faked out of doing so by earlier Court dicta)and emphasizing that there's NO federal statute with such a penalty, the Court can't really get away with saying, "oh, well, we were wrong, but the litigants didn't point it out."

LutherM said...

I am certain that Counsel for the Defendant, Professor Fisher, would be disappointed if the case were to be reheard. He would be even more upset if the decision was reversed. As for Patrick Kennedy, execution would happen to a very deserving person - in which case, law and justice would be congruent. It does happen occasionally.

Henry said...

How does the Court go about rehearing the case anyway?

Wurly said...
This comment has been removed by the author.
Chip Ahoy said...

I wish they would review the decision but I doubt they will. I hope I'm wrong but I doubt I am. Wish, hope, change. See? I can do that too. Yes, we can. No you can't.

Damn.

This has turned out to be a fine blogging day. I missed you.

P. Rich said...

Ya just gotta love what substitutes for thinking on the left. The libs on the bench sally forth with a handful of specious arguments lamely attempting to justify their votes; and when a significant one turns out to be obvious horse pucky it's, "Oh, that wasn't important anyway." or "They aren't responsible for their ignorance." from the peanut gallery.

Beldar said...

Henry: The formal order in which the Supreme Court tells lower courts or public officials what they have to do is called the Court's "mandate." By standing rule, the mandate does not issue until a certain number of days after the Court announces its written opinion.

During that gap, parties may ask for rehearing. Making a timely request for rehearing stays -- that is, blocks or suspends -- the issuance of the mandate.

If the Court denies the request for rehearing, the mandate is then issued. But if the Court grants a motion for rehearing, it will stay of the mandate, typically for an indefinite period pending some further order from the Court.

What I predict will happen here is that the Court will grant the motion for rehearing in part (limited to issues relating to the federal law). It might or might not permit further briefing, but given the magnitude of the screw-up by the Court and the parties before the original decision, it would be pretty presumptuous to refuse to accept further briefing from anyone (probably including amicus curiae) who might want a say.

Then, probably without further oral argument, Justice Kennedy, joined by the same four who joined the original majority opinion, will issue either a revised opinion to completely replace the original one or a shorter, supplemental opinion only discussing the federal statute. It will reach the same result. It will probably say that what Congress prescribes for members of our armed forces isn't genuinely representative of the "evolving standards of decency" for civilian life -- and there are indeed many other examples it can point to in which the UCMJ is significantly more harsh than the civilian criminal laws, either state or federal.

The relief ordered will be the same: The SCOTUS will reverse the judgment of the Louisiana Supreme Court and remand to that court for proceedings not inconsistent with the SCOTUS opinion. That means the Louisiana courts will have to either let the rapist go or else commute his death penalty to a life sentence, and of course they'll do the latter.

NoBorg said...

Well, um, since when did the Supreme Court have the authority to strike down lawfully enacted legislation because it violated some alleged "national consensus"? Is that actually codified somewhere?

I'm completely ignorant of law stuff so this may be a stupid question, but I thought the Supreme Court's authority only extended to striking down laws that violated the Constitution.

Beldar said...

NoBorg: The rationale (which I don't agree with) is that the Louisiana statute permitting capital punishment for rape victims violates the prohibition against cruel and unusual punishment in the Eighth Amendment to the U.S. Constitution, as made binding upon the States through the Fourteenth Amendment.

The SCOTUS' recent Eighth Amendment precedent looks to "evolving standards of decency" as a supposed test for what punishments are "cruel and unusual." Critics of the Court like me think that's a meaningless, disingenuous bunch of tripe used to camouflage the application of the Justices' own policy views. Since there's a 4/4 split with Justice Kennedy in the middle, his gut feelings, re-labeled as "evolving standards," effectively become the constitutional law of the land.

Beldar said...

A bit more.

Why, you might well ask, ought "evolving standards of decency" be used to define the meaning of "cruel and unusual punishment"?

Stripped of citations (which give the names and the volume and page numbers of the prior cases being quoted), here's Justice Kennedy's answer to that question:

The Eighth Amendment, applicable to the States through the Fourteenth Amendment, provides that "[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." The Amendment proscribes "all excessive punishments, as well as cruel and unusual punishments that may or may not be excessive." The Court explained in [two prior cases] that the Eighth Amendment’s protection against excessive or cruel and unusual punishments flows from the basic "precept of justice that punishment for [a] crime should be graduated and proportioned to [the] offense." Whether this requirement has been fulfilled is determined not by the standards that prevailed when the Eighth Amendment was adopted in 1791 but by the norms that "currently prevail." The Amendment "draw[s] its meaning from the evolving standards of decency that mark the progress of a maturing society." This is because "[t]he standard of extreme cruelty is not merely descriptive, but necessarily embodies a moral judgment. The standard itself remains the same, but its applicability must change as the basic mores of society
change."


Read that last sentence over to yourself a few times. It's utter nonsense -- pure double-talk. Who gave the Court the authority to dictate what the "basic mores of society" are, and when they've changed? In other matters of public policy, the branches of government that are closest to society -- the legislative and the executive branches, both elected -- make policy, while the state and federal constitutions are supposed to act as the boundaries of their actions. Here, though, the Court says that the federal Constitution changes -- "evolves" -- constantly based on changes to the "basic mores of society," and the most that legislatures and executives can do in expressing the will of the people is to kinda, sorta, in some mysterious Ouija Board exercise understood only by the SCOTUS, demonstrate which way the consensus is moving.

Joe M. said...

... and of course, if the "national consensus" is "moving" in a certain direction in the estimation of certain Justices, that's enough to proclaim that the "basic mores of society" have well and truly changed.

You know, despite the fact that some large parts of our society (i.e. certain States) disagree.

They deign to think that they can understand their own "basic mores" without the help of Justice Kennedy. The impudence!

JohnTaylor88 said...

Anthony Kennedy should be publicly flogged.

Cedarford said...

Beldar - The SCOTUS will reverse the judgment of the Louisiana Supreme Court and remand to that court for proceedings not inconsistent with the SCOTUS opinion. That means the Louisiana courts will have to either let the rapist go or else commute his death penalty to a life sentence, and of course they'll do the latter.

If you have spent anytime in Louisiana you would know that most of NOLA is a pack of savages and the rest of the state is ....different...than the rest of the USA.

I venture most Louisianans - white, black, creole, cajun, coonass, Indian-American, Vietnamese would prefer the monster let go...at an announced time and place in a rather remote area miles from law enforcement or ACLU types.

"Naw, mah chiles - don't be none of you just shooting him when they are so many fun things we can do out in de bayou swamps..Have us hours and hours of fun. Makin' such as him have to move to NYC..or San Francisco.."

Or just release Patrick Kennedy into Gen Pop at Angola, unguarded, and videotape what happens in the remainder of his lifetime sentence (the next 20 minutes or so), so other child molesters "get the drift" of what's in store..

**************

Christopher Hamilton said...

Once again, the Supreme Court has taken away rights from the American people. We the American people, decide what is just and not just in our society.

NoBorg said...

Wow. Interesting stuff. So if that sort of word twisting qualifies, then it sounds like the Supreme Court is pretty much Parliament - as long as they can get a majority vote there is no limit at all to their authority.

I always thought "cruel and unusual punishment" referred to deliberately inflicted suffering or humiliation.

How can the same penalty that is widely accepted for murder turn into "cruel and unusual punishment" when applied to another very serious crime?

Trumpit said...

"And citizens at home do not "need to be greatly discouraged from raping" the local children?

You've got some strange ideas about justice, friend."

Joe M.,

I never said that, so stuff it.
I'm sorry if all you can see is black and white and no shades of gray. You are young and there is still hope for you, whereas there isn't any for many stale commentators around here. I'm in favor of the death penalty for massive theft like that perpetrated by white-collar folks at Enron, so there. Imo, stealing the retirement pension from little old ladies should be "greatly discouraged." If my theory of punishment and retribution were to take hold then Wall Street would be flowing in blood. Those rotten greedy pigs deserve to die, besides. Pardon my irateness.

Desertion in a military context was punishable by death by firing squad; deserting your platoon in the heat of battle was to be greatly discouraged. If you desert your studies and fail all your classes, the most you'll be is out on your ass and thrown out of school. Perhaps you should be put to death to save society from your parasitism and wretchedness, but there are civilized limits to society taking retribution and some shades of gray - although not in your hair yet, my youthful friend.

Btw, Texans gave us Bush and more Bush ad nauseam, perhaps for that horrendous crime, you all should be made to do some community service or at least be bankrupted to pay for the damage done to Bush's numerous victims - all of us in fact. Putting all Texans of the Republican persuasion to death is going overboard, but a case can be made for it.

Yes, I have "strange" ideas, and you should have some, too, if you ever want to be more than a sheepish follower of the bad and dumb philosophy of your parochial tribe.

Middle Class Guy said...
This comment has been removed by the author.
Middle Class Guy said...

Trumpit said...
I personally don't think there is as big a problem here as you think there is. I don't think it is inconsistent to allow the death penalty for rapists/child rapists for military personnel and not in the civilian sphere.


I believe that the death penalty for the rape of a child is not only appropriate but the only justice for the victim and society. People who rape children will keep raping children. The death penalty stops them from doing it again. Children are one of the least protected groups in society.

The only better penalty is to let the parents kill the offender.

I also believe in the death penalty for dope dealers, who murder people slowly.

But then again, I do not value the life of scum of the earth.

Joe M. said...

tsk, tsk, Trumpit. You gotta slow down and think some time before you spout off.

1. Of course you never said that. You did imply it though, which is why I pointed it out. Notice the '?' It is important.

2. One can hardly blame Texas alone for any problems one may have with Bush: all the States voted, and they elected Bush twice. As for your assertion that the lawful election of a particular person as President is a "crime," well, I can't help you. And your suggestion of retribution is downright nauseating: this is America; we don't do that. Did I really need to remind you?

3. Your final paragraph is, of course, utter nonsense. You ought to focus on what's being said, not what the straw men in your head are saying.

Best,
Joe M.

Beldar said...

Cedarford: I enjoyed your comment, and appreciate that some of it is tongue-in-cheek, while some of it probably isn't. I've lived in Houston for 28 years now, almost next door to Louisiana, and during my clerkship for a Fifth Circuit judge, Louisiana was one of three states from which we regularly heard appeals.

You're right that Louisiana is different: My two co-clerks and I used to draw straws, with the short straw having to work on the Louisiana cases, which inevitably involved terminology and sometimes entire legal concepts that were alien to the other 49 states of the Union. But I nevertheless have a considerable store of affection for Louisianans of all stripes and locations.

In this instance, were I a legislator, I'd have voted, as a policy matter (weighing all sorts of competing factors) against their statute making aggravated rape of a child a capital crime. Were I their governor, I'd have vetoed it, again on grounds that I think it's a bad policy (mainly for "slippery slope" reasons). But I'm neither a Louisiana legislator nor its governor, no more so than Anthony Kennedy is. Like him, I'm a lawyer from another state. Unlike him, I haven't (a) been nominated by a president and confirmed by the Senate to the SCOTUS, or (b) lost touch with the notion of "judicial modesty" that Chief Justice Roberts so eloquently described in his confirmation hearings.

Justice Kennedy is a good, decent man, by no means unintelligent, and by no means always, or even usually, wrong in his rulings. He's able to string together a series of quotes from previous SCOTUS decisions which did indeed use this "evolving standards" language in Eighth Amendment cases, and he may very well believe that those prior cases require him and his fellow Justices to determine when and how those "basic mores of society" have changed.

What he lacks, though, is the clarity of purpose (as to the limited role of judges) and the associated courage to say forthrightly that those prior cases are WRONG and must be overruled. What he lacks is a sense of horror that his position as "swing Justice" on cases like this one now make him, in effect, the Emperor of America. In those respects, Justice Kennedy is the Justice most unlike Justice Thomas, who's got exactly that sort of clarity of purpose and courage, and who recognizes that even honest and well-meaning judges can still impose tyranny on the people.

Simon said...

Has Louisiana petitioned for rehearing, though? The docket doesn't show it. The case was decided June 25th, so they must be getting awfully close to the edge of Rule 44 if they haven't hit it already.

Middle Class Guy said...

Oh, yea, strumpit,
I also believe in good, old fasioned vigilantism; if the government won't do its job, people like me will. There is no justice, just us.

AllenS said...

Trumpit said...

"An older Japanese friend of mine said that rapes by U.S. soldiers of Japanese women and girls was commonplace when the U.S. Army occupied Japan after it's surrender. It still left a bitter taste in his mouth."

I spent time in Japan, and never heard one Japanese say anything like that. "Commonplace", nonsense.

Trumpit said...

http://www.reuters.com/article/topNews/idUST27525420080212

Feb. 12, 2008

"It is unforgivable," Prime Minister Yasuo Fukuda told a parliamentary panel in his first public comments on the latest incident on Okinawa, host to a huge U.S. military presence.

"It has happened over and over again in the past and I take it as a grave case."

Defense Minister Shigeru Ishiba expressed anger over repeated incidents despite frequent promises by U.S. officials to prevent them. "This will have a big impact on future U.S-Japan relations," he told a news conference.

In 1995, the rape of a 12-year-old Japanese schoolgirl by three U.S. servicemen sparked huge protests calling on the U.S. military to leave Okinawa, where residents have long resented crime, noise and accidents they blame on the U.S. presence.

Ann Althouse said...

Simon, I see the line: "Jul 21 2008 Petition for Rehearing filed."

The NYT article that I linked to also said it was filed.

P. Rich said...

A very late FYI:

Yes, Louisiana is different. It has a history connecting back to the French legal system which is, of course, different from the English legal system. Really.

Simon said...

Ann Althouse said...
"Simon, I see the line: 'Jul 21 2008 Petition for Rehearing filed.'"

Hmm. Wasn't there when I looked, so maybe it just took a while for the docket to update.

"The NYT article that I linked to also said it was filed."

Call me a mean old cynic, but I want to see an official source - that's why I hate articles that describe a study or a decision or what-have-you but don't actually link to it, for which the NYT is notorious.