October 21, 2008

A legislative scheme to overcome the Supreme Court's ban on the death penalty for child rape.

Jac thinks he may have discovered one:
So, the Kennedy decision was based on various factors, but the main one was "evolving standards of decency" -- in other word's, America's (supposed) consensus on the issue of executing child rapists. According to the Court's majority opinion, a survey of the law in the jurisdictions that do allow the death penalty shows a "national consensus" that is "divided ... but, on balance, ... against it."

Now, it's open to question whether that's remotely accurate....

And I tend to cringe when the Supreme Court suddenly appoints itself supreme pollster of the American people's legal principles.

But that's what they said, so let's take it as a given.

[T]he Court looked at the specific statutes from each death-penalty state to discern a national consensus...

Death-penalty states could work together to draft uniform legislation, which each state would then pass, saying that they'll have the death penalty for child rape -- but with a twist.

Here's the twist: the statute may not be enforced until a sufficient number of states have passed this very legislation.
Read the whole argument. That's just an excerpt to give you the idea what the scheme is. The states would not violate the Supreme Court's decision. They would be participating in the evolution of new "standards of decency" by passing statutes that, by their own terms, would be slated to go into effect only when the standards had in fact evolved. At that point -- the number could be, perhaps, 20 states -- couldn't a state constitutionally impose the death penalty for child rape?

Jac (who is my son) doesn't think this will happen, nor does he want it to happen. He's offering this as a theory and wants to know if it's correct.


PatHMV said...

While I like the substance of the proposal (and anything to stick it to Justice Kennedy's misbegotten understanding of the Court's role), I am concerned about the constitutionality of legislation which explicitly depends for effectiveness on a certain number of states passing it. I've addressed this before in the context of proposals to have the states eliminate the electoral college, by awarding their electors based on the "national popular vote" rather than the dictates of their own state's voters.

I think that conditioning the effectiveness of the statute on other states joining in and passing the same statute makes it a de facto interstate "compact," which is prohibited by the Constitution.

In the long term, I think it's very dangerous to the fabric of the country to have blocs of states working together to pass semi-national legislation. Each state should either operate independently, or national policy should be set at the federal level in accordance with the Constitution.

Cabbage said...

He is correct to the extent that what is suggested would create a new standard.

Of course, there is no way that a new standard will ever evolve to the point that it satisfies those five justices' personal misgivings about the death penalty.

PatHMV said...

cabbage is correct. The "national consensus" test is merely dishonest window-dressing, masking Justice Kennedy's personal policy preferences. As Justice Scalia noted in response to the denial of rehearing in this case, it really doesn't matter what the facts are, they will be contorted or ignored in order to find the "national consensus" that Kennedy wants. If the evidence of a national consensus is too overwhelming, then he'll ignore that and determine that stare decisis requires the Court not to revisit the issue. Or whatever other legerdemain it takes to do what he wants to do.

Anonymous said...

Couldn't a state just exempt from all crimininal and civil liability a citizen's killing of an individual duly convicted of child rape? Would there be an equal protection violation?

Outis said...

I believe JAC makes a better point with this question: If _____ and I are right about [this scheme], then what does that say about how the Supreme Court decides its cases?

It says that decisions are made first, and that rationales for the decisions get made up later. Also that the ratinales don't have as much importance as far as the Court is concerned.

PatHMV said...

Oh, and my own policy preference for undoing the Court's decision in this case is for the states to adopt a new crime of something like "manslaughter in the third degree." The penalty would be fairly mild, a stiff fine and maybe a very short prison term. It would apply to any killing where the offender is a close relative of a child who was raped by the "victim." When the government won't do what the people want, the government should get out of the way and let the people do it themselves.

Cabbage said...

Joining the full disclosure crowd wrt what I said earlier, I'm opposed to captial punishment in just about every non-wartime situation.

Simon said...

The problem is that John is taking seriously (as I think you did, in calling for rehearing) the court's claim that its survey really carries any weight in its analysis. I dispute that, and so do the Chief Justice and Justice Scalia. The empirical test is window dressing, not the basis for the ruling; the test is manipulated by choosing whether to focus on counting heads (as in Kennedy) or evaluating the "consistency of the direction of change" (as in Roper), to the end of manufacturing an artifice that the empirical data leans one way but is inconclusive, thus justifying (and minimizing the role of) the exercise of the court's independent judgment. This is a Potemkin village of a jurisprudence, and it seems deeply unrealistic to take serious any notion that the evolving standards of decency of America - rather than the standards of decency of five Justices - have any impact on the ruling whatsoever. If JAC's proposal were adopted, the court would simply find some alternative grounds - a consensus among the courts of civilized nations, for example, a move for which they've already prepared the ground (an issue on which Althouse was among the dogs who didn't bark, I might add).

Anonymous said...

And I tend to cringe when the Supreme Court suddenly appoints itself supreme pollster of the American people's legal principles.

Our government is supposed to be a democratic republic. Unfortunately, that nuance is lost on most of America, and apparently most of the SCOTUS.

SGT Ted said...

Please. The "standards of decency" are only seen as "evolving" when they support a leftwing, Eurosocialist policy preference.

Richard Dolan said...

"According to the Court's majority opinion, a survey of the law in the jurisdictions that do allow the death penalty shows a 'national consensus' that is divided ... but, on balance, ... against it.'"

Now, it's open to question whether that's remotely accurate...."

What does a "divided consensus" mean? The usual definition of "consensus" is a general agreement approaching unanimity. The idea is that, when "consensus" is reached, any prior differences of opinion on the subject have, for all practical purposes, been resolved. To talk about a "divided consensus" that is "on balance" one thing or another is obviously using the words in a very different (and just as obviously, result-driven) way. I suppose Kennedy's problem was that "consensus" had become embedded in 8th Amendment jurisprudence as a touchstone of sorts, and so Kennedy had to go through the motions of touching the verbal talisman. Given the sharply divided Court, the talk of "divided consensus" was ironic, almost funny, and in the end only meant "5 out of 9."

It would have been embarrasing to acknowledge any of that, of course, and so Kennedy's opinion sailed blissfully along making up new meanings for old words. Nothing (including an embarrassingly overlooked federal criminal statute) was going to get in the way. (In doing so Kennedy was being more bloggy than he probably knew.)

JAC deserves credit, of an odd sort, for going through the exercise of taking Kennedy's "consensus" calculus more seriously than it was ever intended. (There's a nice display of the difference between original meaning and original intent -- perhaps JAC was just having some fun with all those originalisms.) JAC's solution has another nice and quite subtle benefit. In its structure, it has the pattern of a fake-but-accurate constitutional amendment, which only takes effect when ratified by the required number of states (another "consensus" of sorts, and one that can "evolve" too). Not a bad response to a fake-but-accurate constitutional "test."

But despite its virtues, JAC's solution never comes to grips with the underlying problem. The difficulty with legal arguments that, like Kennedy's, twist ordinary words to mean whatever the judge says they mean, is that there is no logical stopping point to the twisting. It's the verbal equivalent of a logical contradiction, from which any conclusion follows.

bleeper said...

I used to be very pro-death penalty, mainly due to the lack of recidivism. However, having witnessed up close and personally how a DA can fabricate a case and charge clearly innocent people with terrible crimes that carry huge sentences, I am less enamored of having the state execute those convicted of serious crimes.

Perhaps if there was the possibility of a true sentence to life in prison, it wouldn't matter. Too often, at least in this state, perps are released and commit more crimes, and we pay the price.

C. Schweitzer said...

That was always my problem with Justice Brennan's original four-pronged test in _Furman v. Georgia_. One of the tests for whether something can be considered "cruel and unusual punishment" is whether it is "spectacularly rare."

All that needs to happen, then, is for the states to start killing more people and it's no longer "rare."

Of course, as a strict constructionist (actually, Scalia hates that term and likes "originalist" better, I guess), I never like using "evolving" standards for anything constitutional.

Actually, Professor Althouse, have you ever stated what general constitutional philosophy is?

C. Schweitzer said...
This comment has been removed by the author.
Simon said...

Richard Dolan said...
"including an embarrassingly overlooked federal criminal statute"

It's somewhat short of embarrassing in this case. The statute was missed by the SG, both parties to the case, every amicus, and all nine justices. Indeed, it seems highly likely that few members of the Congress that voted for the bill knew that provision was in there. I've suggested before that gigantic omnibus bills that not a single member has read is part of a broader pathology that has consumed Congress. The Congress is fundamentally broken, as I see it, and it's broken in ways that can't be fixed with changes to the rules or even Constitutional amendments. It's broken down as a result of pressures that can't be fixed with mere words, although fixing the problem most likely starts, if not ends, with structural reforms.

William said...

Those who think that there are no crimes deserving capital punishment lack imagination and empathy....Has there ever been a study that compares the mourning process of those who know that the perpetrator of the crime was executed vs those whose perp went to prison and lived happily ever after. I am thinking of Richard Specht. He raped and murdered seven nurses and got sent away for life. He went on television and bragged about the fine drugs to be had in prison. He had no problems with homosexual rape either--rather enjoyed it in fact. The relatives of the nurses when they heard about the interview felt the way you would imagine they'd feel....Is it such an awful thing to give these families closure.

Harsh Pencil said...

This is not about the death penalty. This is about self rule. Anything that directly challenges the Supreme Court's coup d'etat over larger and larger swaths of our government is a good thing.

The SC's behavior reminds me of Wall Street's. It's possible to push all your risk into a large probability of moderate success and a small probability of a huge disaster. (Go into a casino with $6,300. Bet $100 on red. If you win, walk away with $6,400. If you lose, bet $200 on red. If you win, walk away with $6,400.
If you lose, bet $400 on red. And so on until you
win $100, with probability 127/128, or lose
$6300, with probability 1/128.)

The Court keeps getting it's way on this or that policy issue by giving us an either/or proposition: Accept this, or throw the entire system out the window. Sooner or later, they will get the latter.

Lem said...

Unless you have DNA evidence child rape cases are very difficult to prove..

Are we really willing to put people to death on the word of a child?

Simon said...

Outis and Harsh Pencil talk about "the court." Although that is idiomatically accurate in the sense that the dissent in a given case might refer to "the court" as a synonym for the majority, in the common sense of the word, it refers to the nine, and it bears noting that four of the nine dissented in this case. It may be true for some judges - on a systematic level, that is; everyone has moments of weakness and contrary behavior - that the decision is made and a rationale then supplied, but that is not true of all of them.

It also illustrates something amusing about consensus. The right thinks that the court has conducted a coup on the strength of cases like Roe, Lawrence and Kennedy, while the left I suppose feels the same about cases like Lopez, Seminole Tribe and Heller. Of course, I think that the right is closer to being right, but it's interesting to note that both sides have the same sense of grievance, even if one side's sense of grievance is preposterous.

TMink said...

Lem wrote: "Unless you have DNA evidence child rape cases are very difficult to prove."

Depends on the age of the child. I have seen five year olds go in and leave the jury in tears. I have seen 10 year olds talk to the perp's lawyer for 10 minutes and the perp take a plea deal for 40 years rather than allow the chilod to testify! I have seen 12 year olds go in and detail the perpetrations in such detail that the judge (a man for the record) teared up. That dude got life without parole, he deserved it too.

I am against the death penalty in principle, but if I could justify any death penalty circumstance, this would be it. The more important question as far as the survivors go in child rape is to make sure that the child knows that the pervert got in trouble. Big trouble preferably. This is key to giving the child the best chance of an easier recovery.


Simon said...

Lem said...
"Unless you have DNA evidence child rape cases are very difficult to prove. Are we really willing to put people to death on the word of a child?"

That's a reasonable point to make, but that's a different case to Kennedy. Kennedy goes to the question of whether the death penalty can be authorized for anything but murder, ab initio; under its regime, if you have a case where the rape is caught on camera and the rapist confesses, you still can't execute them. Of course you can talk about evidentiary standards, and of course it doesn't follow that just because the death penalty is authorized for a give crime any particular person can actually be executed for it. But that's a separate issue.

Hey said...

Silly Rabbit, evolution only goes one way! Evolution is Progress, while anything anti-progressive is inherently anti-evolution.

This is yet another piece of evidence in support of Justice's Thomas statement. There is the constitution, and then there is leftist handwaving. Anything outside of abiding by the intent of the Framers is an abomination and aconstitutional.

There's an amendment process, use it. I much preferred it when countries actually adhered to the rule of law. But apparently the rule of men is fine and dandy when they wear robes and went to Yale.

blake said...

Actually, if you had coordinated death penalty initiatives over 50 states, you could achieve something like a genuine consensus, you could demonstrate the falsity of the argument.

It's a lot of effort to go through to kill some people.

And, of course, they'd just come up with another argument.

MikeDC said...

Interestingly enough, it turns out the founding fathers established a means of "national consensus" that wasn't too far off from this.

Acting together, 3/4 of the state legislatures can pass a law, and, if the same legislation is agreed to by 2/3 of both houses of Congress, it actually becomes part of the Constitution!

So I'd look at JAC's proposal from that light. Fundamentally, I'd guess, he's saying that lowering the standards of what counts as "national consensus" might be advantageous.

I don't see any reason to think this is the case, except insofar as doing so might throw some of these issues back into the rubric of the larger legislative body and out of the that of the nine member Supreme Court.

Of course, I also buy into the argument that the court has been incapable of avoiding the temptation to legislate because the larger legislative bases have been generally unable to.

Outis said...

Simon wrote: It may be true for some judges - on a systematic level, that is; everyone has moments of weakness and contrary behavior - that the decision is made and a rationale then supplied, but that is not true of all of them.

True enough. But each such case weakens the whole.

IPF said...

Before I begin, I would like to lay my cards on the table. On the one hand, I am opposed to the death penalty on philosophical grounds. On the other hand, I think the reasoning and methodology of Kennedy in Kennedy borders on ridiculous (and am currently working on a law review article to that effect).

As to JAC's proposal, I very much doubt it would work. Such a scheme would almost certainly be struck down by the Court - and struck down *consistently* with the (problematic) reasoning in the Kennedy decision.

Kennedy's opinion in Kennedy outlines a two-part test. The first deals with the "evolving standards of decency that mark the progress of a maturing society." The Court is (in theory, at least) guided by "objective indicia of society's standards", the most important of which is legislative enactments. I agree that JAC's legislative scheme would satisfy this requirement (at least assuming the Court consistently applies this standard).

However, Justice Kennedy makes clear in Kennedy that: "The inquiry does not end there, however. Consensus is not dispositive. Whether the death penalty is disproportionate to the crime committed depends as well upon the standards elaborated by controlling precedents and by THE COURT'S OWN UNDERSTANDING and interpretation of the Eighth Amendment's text, history, meaning, and PURPOSE." (Slip opinion, emphasis obviously added.) Kennedy seems to understand this to license the Court to consider the policy implications of allowing the death penalty for child rape: about a dozen pages of his opinion are devoted to claims that executing child rapists would be bad policy (pp23-35).

The Court therefore has argumentative resources to rely on in order to invalidate the sort of legislative scheme proposed by JAC, and could do so in reliance of rather than in defiance of the Kennedy rationale. I am not suggesting that this approach is correct (I disagree with both the 'objective indicia' and 'independent judgment' approaches), but rather that JAC's legislative scheme, while very clever, would not quite hoist the Kennedy Court by its own petard.

IPF said...

P.S. Sorry - that long quote came from p10 of the slip opinion.

knowitall said...

These are issues the Ivy-League illuminati need to take seriously. Our children's lives are at stake, and giving the criminals a slap on the wrist will not do, not at all.