October 1, 2008

The Supreme Court has declined to reopen the child-rape death penalty case.

SCOTUSblog reports:
The Supreme Court, issuing the first orders for the Term that opens formally next week, on Wednesday refused to rehear its ruling striking down the death penalty for the crime of child rape, but modified both the majority and dissenting opinions by adding a footnote to each. The result was that the Court left intact its decision, not only that a death sentence could not be imposed for that particular crime, but also that death could not be imposed for any crime in which the victim is not killed.

The Court’s modifying order in Kennedy v. Louisiana (07-343) was accompanied by two opinions. One was by Justice Anthony M. Kennedy, who wrote the original decision; his opinion was joined by the four Justices who supported that ruling on June 25. The other opinion was by Justice Antonin Scalia, writing for himself and Chief Justice John G. Roberts, Jr. — essentially, a response to Justice Kennedy’s new comments. Justice Samuel A. Alito, Jr., who had written the dissenting opinion from the original ruling, did not join any of the new opinions, but noted he would have granted rehearing of the case. Justice Clarence Thomas took the same position. (It would have taken the votes of five Justices, including at least one from the original majority, to grant rehearing.)
I thought the Court should have reopened the case, as I wrote here, so I'm very disappointed. I'll say something more when I've read the opinions.

23 comments:

erniecu73 said...

Profesor, imagine this:

A child molester flees the country to say, France. He's located, and the USA sues for extradition. What would most likely happen?

Alex said...

This is a no brainer for me. Execution for child rape. No reason not to.

Robert said...

There's no point in rehearing it based on evidence that they were wrong on the facts the first time around. The majority already demonstrated that their opinions trump the facts and the Constitution (Ninth and Tenth Amendments anyone?)...that isn't going to change if they hear it again so why bother?

kengoodsmith said...

I'm astounded. The Court's entire rationale was "evolving standards," and to support the supposed "evolution" they pointed to the lack of any federal statute imposing a death penalty for child rape. "Ooops---there is one for the military?-- nevermind, we didn't REALLY rely on the lack of a federal statute [because we knew how we wanted the case to come out before we did any serious analysis]" Hey folks, just wait for the intellectual honesty you'll see with a couple of Obama picks on the Court.

goesh said...

As a common man, it makes sense - pretty soon we'd have guys walking the gallows for torturing cats or mugging grandmas. I suppose in the joint the boys in the big house eventually find a way to even things out with child rapists, despite segregation.

Geoff Matthews said...

Goesh,

I don't like anal rape for a state-sanctioned punishment. Even if is for child rapists. I want the punishments that the state metes out to be specifically stated.

And I support putting child rapists to death.

Trooper York said...

"Profesor, imagine this:

A child molester flees the country to say, France. He's located, and the USA sues for extradition. What would most likely happen?"

Well he gets to direct a bunch of movies and they just wrote a new biography about him. And I think he is up for an Oscar.

Trooper York said...

Oh wait, that was a rethorical question. Nevermind.

erniecu73 said...

Hahaha, Trooper, indeed, but only if he was born in Poland.

Joe M. said...

... one more reason I'm voting McCain.

Simon said...

Predictable - and predicted.

Buford Gooch said...

"that death could not be imposed for any crime in which the victim is not killed."

Does that include treason?

kentuckyliz said...

gooch, that was the first thing that popped into my mind. Must have been the recent news item about the Rosenbergs really being nefarious spies giving nuke secrets to the Soviets. Their partner in crime shared this on his deathbed.

Samuel said...

Does this mean that espionage and treason are no longer capital crimes?

18 U.S.C. Sec 794(a) and (b)
18 U.S.C. Sec 2381

mccullough said...

Actually, Obama, like McCain, came out against the original decision as well.

Obama also voted against Roberts and Alito, 2 justices in the minority, and said he would appoint Justices in the model of Ginsburg and Breyer, and not Thomas and Scalia.

So the 4 justices he doesn't like, he agrees with on this case. Perhaps someone will ask him about this and some other specific cases.

Steven said...

Repeal the Eighth.

Simon said...

Buford, Liz and Samuel - the court distinguished those in its decision: "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. As it relates to crimes against individuals, though, the death penalty should not be expanded to instances where the victim’s life was not taken." Whether that stands up to scrutiny remains to be seen, but the majority did seek to put those questions to one side.

Simon said...

mccullough said...
"Actually, Obama, like McCain, came out against the original decision as well."

Well, he said it, but I don't think he has much credibility, for the reasons you mention. These were his judicial models applying his judicial philosophy. What about it doesn't he like? Does he think Coker should be overruled? Is he also against Atkins and Roper - or does he not think that this case is within the compass of the principles set out in those cases by the same judges? Can he give us any reason - his supporters like to claim he was a law professor, after all, at least when it suits them - to think that he disapproved for any legal rather than political reason? How does the reality that this result would have been reached by anyone he would have appointed impact his thinking on appointments?

former law student said...

I think a footnote is appropriate. Crimes and punishments for those under military discipline do not correspond to those in civilian life. If I refuse a job assignment, the most my boss can do is fire me; he cannot have me hanged by the neck until I am dead, dead, dead.

Moreover, as the revised decision points out, the military is not hanging rapists either.

The terms "cruel" and "unusual" were selected to be flexible. Interpreting them from a 21st Century standpoint makes more sense than limiting them to the rack and the thumbscrew of medieval times.

Alan said...

From a pragmatic viewpoint, the decision not to re-open the case makes sense, since it would've been a waste of time--all the justices would have ended up deciding the case in exactly the same way anyway. And I say this as someone who agrees with the dissenters on the merits.

Beldar said...

Simon's right, this was indeed predictable and predicted.

It was essential to the entire Court's credibility that the majority at least address in some fashion the enormous factual error in their original opinion. The majority's supplement admits that error.

And it was certain that Justice Kennedy would say (my paraphrase, not his exact words): "The military's practices aren't worth any weight here, we're only concerned with the civilian "evolving standards." I think Justice Scalia's separate opinion gave this much too short shrift, however. He said it's not obvious why the military would have a different standard than civilian authorities for a crime like raping a child, and he's correct. But the fact is that on questions like that specific one, if there is any evolution of standards going on, it's toward greater accountability in general and less tolerance for intentional crimes by members of the military against civilians. And that, in turn, does reflect a change in what civilian society demands of its military forces.

hdhouse said...

an Aye for an Eye I always say

Floridan said...

Perhaps the SC thought that since Sarah Palin didn't mention this case as one she disagreed with, they thought the decision was OK with conservatives.