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More on the Overlooked Military Law in Kennedy v. Louisiana:
My co-blogger Jonathan blogs below about the fact that the briefs and opinions in Kennedy v. Louisiana overlooked the military law permitting capital punishment for child rape in courts martial. It's an interesting situation, and I wanted to blog about it.

  The first question is, who is responsible for overlooking the law? I would think that the first error here (and probably most important) was at the Solicitor General's Office. The SG's Office did not file a brief in Kennedy, and I assume they did not file anything because they didn't realize that there was a federal law to defend. Had they realized there was a federal law to defend, they presumably would have filed a brief pointing it out and defending it. That's their job. [UPDATE: See this article in the Times today for more.]

  With no filing from the SG in the case, it's not very surprising that no one spotted the military law that the SG's Office apparently overlooked. No one — not the parties, not the Justices, not the clerks, not the press, not the blogosphere in the run-up to the decision — looked carefully to see if the SG had overlooked something. So both Justice Kennedy's majority opinion and Justice Alito's dissent are based on the assumption that the six state laws were the only game in town.

  The second question is, how much of a big deal is this? I tend to think it's not such a big deal. The reason is twofold. First, I don't recall military law that applies to court martials by Article I courts being relied upon in past Eighth Amendment cases to determine the scope of evolving standards of decency. My impression is that when the courts look at the law of various jurisdictions to determine "evolving standards of decency," they look to the criminal law that applies in general courts for cases involving civilians, not the Uniform Code of Military Justice that applies in Article I courts involving those in the military. The Eighth Amendment applies in court martial proceedings, to be clear, but it's not clear that the law of courts martial is part of the evolving standards "head count." So while it is technically correct that Congress did authorize the death penalty for child rape, it did not do so in the area that has mattered in past Eighth Amendment cases: criminal law applied in civilian courts.

  Second, the evolving standards inquiry is only part of the doctrinal picture. The Court supplements that with its own independent "judgment." Obviously the latter would not be changed by the knowledge of the military law. Given these two points, I think it is extremely unlikely that the outcome of the case would have been different if the military law had been recognized.

  The final question is, what will happen now? I doubt anything will happen. For the reasons discussed above, I doubt the Justices will see this discovery as such a big deal. It's possible that there could be a slightly amended opinion, but I think it's probably more likely that they'll just let the opinion stay "as is" given that the law was a military law rather than a law that applied to civilians of the sort normally included in the "evolving standards" analysis.

  Anyway, that's my best sense of things. It won't persuade commenter "Dangermouse," who seems to think Justice Kennedy is personally responsible for everything bad in America, but that's my best sense.
Terrivus:
With a post like that, you wouldn't last five seconds on the street.
7.3.2008 1:27am
George Weiss (mail) (www):
well said. i agree entirely
7.3.2008 1:27am
OrinKerr:
Terrivus,

Who is my opponent? I could totally take Ilya.
7.3.2008 1:29am
Thomas_Holsinger:
I agree. This is a de minimis omission and in no way would have affected the outcome. It merits at most a footnote.
7.3.2008 1:40am
BruceM (mail) (www):
While I have no precedent for this statement, I always considered the constitutional scope and severity (acceptable proporionality) of military law/UCMJ to be different than what is acceptable for civilians. If the government made a law against "contempt towards government officials" applicable to citizens, it would certainly be unconstitutional. For example:

888 ART. 88. CONTEMPT TOWARD OFFICIALS
Any commissioned officer who uses contemptuous words against the President, the Vice President, Congress, the Secretary of Defense, the Secretary of a military department, the Secretary of Transportation, or the Governor or legislature of any State, Territory, Commonwealth, or possession in which he is on duty or present shall be punished as a court-martial may direct.

or...

917. ART. 117. PROVOKING SPEECHES OR GESTURES
Any person subject to this chapter who uses provoking or reproachful words or gestures towards any other person subject to this chapter shall be punished as a court-martial may direct.


Certainly these would be unconstitutional if applied to the general public. Military crimes are by their very nature more serious than civil crimes. Even for crimes that do apply to both the military and civilians, a punishment that might be excessive for a civilian might not be excessive for the military.

Punishment of civilians and punishment of military personnel serve different goals (with some overlap). So, I'd argue that Kennedy v. Louisiana might not even apply to the UCMJ. Likewise, an acceptable punishment under the UCMJ is irrelevant as to whether that same punishment of a civilian would violate the 8th Amendment.
7.3.2008 1:51am
LM (mail):
You're being way unfair to DangerMouse. Though he's had some harsh words for Kennedy recently, I'm pretty sure that in his heart he only holds Kennedy 20% responsible for everything bad in America.
7.3.2008 2:45am
ben (mail):
Even for crimes that do apply to both the military and civilians, a punishment that might be excessive for a civilian might not be excessive for the military.

Actually, it's quite the opposite. Often times when soldiers get picked up for assaults, DUIs, etc. that could result in jail time, the civilian courts remand them to the unit for nonjudicial punishment and they get restrictions, extra duty and reduction in rank. If a unit wants to be harsh, they can leave them with the civilian court... and then hit them again for disobeying orders / general regs. I recall one situation where we were jumping through hoops trying to get a soldier's article 15 complete specifically to ensure that it was done before the civilian could do anything.

I think that military justice is often more lenient because the priorities are shifted towards the mission and rehabilitation is more useful to that end. Also, it really has to be because the UCMJ criminalizes virtually everything... article 92 makes it a crime to fail to obey or violate any regulation, and not knowing the regulation is no excuse. There are thousands of pages of regulations and they're layered from the DOD to the service to major command to post to unit.
7.3.2008 3:29am
Roger Schlafly (www):
So it is the SG's fault for not anticipating that the Supreme Court would declare a national consensus when no such consensus exists? Should the SG regularly pepper the Supreme Court with briefs arguing for various lacks of consensus?

Maybe the SG thought that the court would confine its ruling to the actual case, as it is supposed to do.
7.3.2008 3:40am
BruceM (mail) (www):
Ben, ignorance of the law is never an excuse, civil or military. And think of all the tens of thousands of laws that exist, many of which are so random nobody would know them. For example, it is illegal to sell or offer to sell any speleothem in Texas, or export them
for sale outside Texas, without written permission from the
owner of the cave from which the speleothems were removed. Doing so could result in up to 2 years in the state jail. Tex. Natural Resources Code sec. 201.042. Who the fuck would think you can't sell a little stalagmite on eBay without written permission from the owner of the cave from where it came? It's also illegal in Texas to sell or possess a live armadillo - up to 180 days in jail. Tex. Parks &Wildlife Code sec. 63.103. Alas, ignorance of the law is no excuse (it may be a mitigating factor with such obscure laws outside of the penal code).

I'm not surprised, and would usually assume that civilian courts remand them to the military for military punishment. Assuming a war/quasi-war is not going on and the military is stretched intolerably thin in terms of personnel, I'd think military punishment for an offense would be more harsh than civilian punishment for the same offense, all else equal. The military has a much wider variety of ways in which to punish people, while civilian courts are typically limited to incarceration and fines (though some judges do get creative with 'shaming' punishments, etc.).
7.3.2008 4:08am
George Weiss (mail) (www):
bruceM-its not comparable

how many people out there sell speleotherms or possess armadillos?

in the military regulations actually are day to day conduct based. nobody follows all hte regulations becuase there are so many that are directly applicable to those day to day opertions.

the result is that anyone who pisses off their superior for any reason at all can get anything done to him at any time-simply by going through the book and finding 10-20 diffrent regulations the guy didnt follow.

youd have much more trouble doing that to a civillin and proving it beyond a reasonable doubt.

remeber in the military-things are done in groups-there is almost alwyas lots of witnesses.
7.3.2008 5:08am
Public_Defender (mail):
Reality: Most civilian lawyers wouldn't even think about looking to military law when doing a comparative law analysis. That might change now.
7.3.2008 5:57am
Public_Defender (mail):
The Justice Department is admirably admitting its mistake:

“It’s true that the parties to the case missed it, but it’s our responsibility,” the department’s public affairs office said in a statement.

“We regret,” the statement said, “that the department didn’t catch the 2006 law when the case of Kennedy v. Louisiana was briefed.”
7.3.2008 5:59am
Duffy Pratt (mail):
Does anyone see the irony in someone bringing up the presumption that everyone knows the law, when it this case its clear than neither the justice department nor the Supreme Court knew?
7.3.2008 6:14am
jagbn:
A few thoughts: What if, in the next several years, 25 states pass laws authorizing the death penalty for rape of a child. Must Kennedy v. Louisiana be overturned since "evolving standards" now show that society at large accepts the death penalty in such cases? Seems to me that the only real way to determine whether "evolving standards" have anything to say about the constitutionality of some legal provision is whether society has invoked the procedures in Article V to make such evolving standards part of the constitution.

Civilian courts may decline to prosecute cases involving military actors, but to say that they "remand" cases back to the military mis-states the law. As far as state courts go, they have absolutely no power to decide what the military justice system does, since it is a federal system, and a separate sovereign. It is uncommon, but it happens that someone in the military is convicted in both state court and military court-martial for offenses involving the same course of conduct. (This happens overseas as well, as between foreign and military courts). It is often more common for the military to wait for the results of state court proceedings in cases where the crime occurred out in town and the only military involvement is the fact that the accused is in the military. Drunk driving is a common example. It is also common for the military to simply discharge someone who is accused of serious felony misconduct (typically murder) in a cases being prosecuted by state authorities.
7.3.2008 6:43am
George Weiss (mail) (www):
Duffy Pratt

the presumption that everyone knows the law is not based on any sort of reality and most, intelligent, supporters of such a presumption will acknowledge that.

the presumption is one of necessity. if "i didn't know the law' was a defense...virtually no laws civil or criminal would be enforceable at a practical level. it is an undue burdun to have to prove someone knew the law.

those those who make the legal presumption that everyone knows the law would expect that its probably not true.

irony is typically defined as the opposite of the expected result. since nobody expects that everyone knows the law, it is not the opposite of the expected result.
7.3.2008 7:50am
JosephSlater (mail):
Well that's it: me and Armando (my pet armadillo) are staying well clear of Texas.
7.3.2008 8:19am
Gacy:
So, is the federal law now unconsitutional? If, as OK suggests, the federal statute is irrelevant because the Court wouldn't look to military law when determining whether "evolving standards of decency" prohibit a specific punishment, then the civilian/military distinction should hold and Kennedy simply doesn't apply to the federal law.
7.3.2008 8:50am
SPO:
No offense, Orin, but I think you are way off base here.

If what we are getting at are the evolving standards of decency, then the fact that Congress, the legislature for the nation has authorized the death penalty for capital rape is important. It's not just one more jurisdiction--it's the most important one. I don't see how the fact that the courts have never looked to military punishments before is at all relevant. If society has made the judgment that executing child rapists is indecent, then it's nonsensical to have an exception to that general decency standard apply simply because the rapist is a soldier. In other words, what does the fact that this punishment is only available to the military have to do with the decency analysis? Whether the death penalty is available for this crime is a profoundly moral judgment--and how is the fact that the rapist is a serviceman relevant to that moral judgment? Therefore, it seems to me that the fact that Congress, the representative of the people, decided that the death penalty is appropriate for child rapists is strong evidence that society does not consider the execution of child rapists to be beyond the pale.

And why is the fact that courts haven't looked to military justice to determine "evolving standards of decency" relevant? Military justice does have different aims--but with respect to very serious crimes, the aims are identical. And it cannot be forgotten who is deciding the permissible range of punishment--it is Congress. Congress has got to be presumed to bring its own view of evolving standards of decency when setting forth punishments for serious crimes committed by military members.
7.3.2008 8:53am
Dave D. (mail):
..Since the Federal Constitution didn't apply to the states when written, and few laws had yet been enacted creating Federal offenses, I think that the Founders meant that the cruel and unusual provisions were expressly directed at military punishments, such as flogging and keel hauling. I think the Founders would be aghast at the Kilo and Boumedienne decisions, as are most folks. Absolutely unexpected and the very definition of " unusual". Taking away someones property via state power to give it to another private entity is undoubtedly cruel. Perhaps those words have lost their meanings at court.
...The real evolving standard is that SCOTUS decisions will be combed through immediately by experts in law and their flaws and omissions made available to the masses, pronto. People of a certain age, Dan Rather and the Black Robed Nine come to mind, don't seem to have tumbled on to that. Maybe keel hauling should evolve back into fashion. At least until they raise their standards of scholarship.
7.3.2008 9:45am
ejo:
responsible for everything wrong-No. it is just further support for the fraud that the Supreme Court becomes the further it gets from actually following the Constitution to substituting its own feelings for the actual text.
7.3.2008 9:48am
Doug Berman (mail) (www):
As I explain more fully in this post, I think the public reaction to the Kennedy ruling undermines its legal merits more than the military law mistake.

Who knows about the the legal and practical dynamics that surround rehearing petitions in the US Supreme Court?Apparently the SG's office is prepared to file an amicus brief in (support of?) any rehearing petitioning. Could the re-hearing effort get some juice if, say, Obama and McCain give it some public support?
7.3.2008 9:48am
rarango (mail):
I can see it now: Joseph Slater and Armando start in a new road flick a la Thelma and Louise (who also stayed out of Texas): Joe and Armando!
7.3.2008 9:50am
BruceM (mail) (www):
George: the average civilian breaks about 20 laws a day - if the gov't wanted to prosecute a civilian, they could always do so - just follow them around for a day.

Since I believe it is improper for the courts or legislatures to "ban" criminal defendants from using specific defenses, and a defendant should be acquitted if he can show his behavior was objectively reasonable under the circumstances - in all cases - lack of knowledge of the law should be a legitimate defense. "I didn't know murder was illegal" would probably not work, but "I didn't know possessing a rock from a cave without papers was a crime" is not only reasonable, it's hard to believe the contrary. I didn't know it - I have a book of obscure texas crimes sitting here and I just opened it up to a random page (it's a current book... not talking about silly crimes from the 18th century).

Doug: any case that does not rule in favor of the prosecution in a child-harming case will be taken advantage of by unscrupulous politicians. Any time they can invoke "the children" they will do so. This lets them say the decision approves the rape of a child, and if you elect my opponent, he'll add more child-rape approving judges to the courts... blah blah for the children blah blah.

Screw the children. I'd like to see a political debate where the candidates are not allowed to use the words "child" or "children" at all. Might have some substance to it.
7.3.2008 9:56am
Aaron Walker (mail):
Orin

I thought your main-post dig at dangermouse was really low class.

DM is pissed off at Kennedy for an opinion that is frankly excreble. maybe he goes overboard a little, but his anger is based on good moral instincts.

Kennedy's opinion doesn't even maintain a plausible veneer of proper legal reasoning. And the result is horrifying. i don't know anyone, liberal or conservative, who agrees that if the death penalty is allowed, that these bastards don't deserve it.
7.3.2008 10:12am
krs:
So it is the SG's fault for not anticipating that the Supreme Court would declare a national consensus when no such consensus exists?

Indeed it is. It's not like this was done without any warning.

If anyone was ambushed by the opinion, it was probably the "leading British law associations, scholars, Queen's counsel and former law lords" who went to all of the trouble of writing an amicus brief--in justifiable reliance on Roper v. Simmons--and who seem not to have been acknowledged in the opinions in this case.
7.3.2008 10:17am
krs:
British lawyers' amicus brief here.
7.3.2008 10:22am
PatHMV (mail) (www):
Orin, you say:

Second, the evolving standards inquiry is only part of the doctrinal picture. The Court supplements that with its own independent "judgment."


That is certainly the claim made by Justice Kennedy. However, I don't think there can be a legitimate claim that the evolving standards inquiry is in fact any part of the doctrinal picture unless you can show that that it influences the result in any way. Military law or not, this shows an exceedingly recent expression by Congress in favor of the death penalty by minors. It is a very timely expression of the national sentiment towards what is and is not within society's standards. Moreover, it shows that the "direction" of change is toward making this punishment MORE available rather than less. And yet I've not seen a single commenter, even from supporters of Justice Kennedy (are there really any?), who believes that the result will change based on this new discovery. Can you provide any evidence to support the premise that the "evolving standards" arguments made by Kennedy here (and in Roper and elsewhere) are anything other than window-dressing to provide some pseudo-intellectual cover for enacting into constitutional law his own gut feelings? Is there a singe opinion in which Justice Kennedy has said: "this is against my personal standards of decency, but it's clear that it's constitutional?"
7.3.2008 10:26am
PatHMV (mail) (www):
ok, obviously I had some difficulties with my typing fingers in that last post... I meant to say that "Military law or not, this shown an exceedingly recent expression by Congress in favor of the death penalty for those who rape minors." I think my Roper-rant wires got crossed with my Kennedy-rant wires.
7.3.2008 10:30am
merevaudevillian:
For a bit on some of the Court's history of rehearings, consider the following case: the Court made a rather bold claim that it could find no cases before 1940 that stood for a proposition. After the opinion was released, contrary cases were found, and rehearing was granted. This, however, only served to reinforce the majority's opinion (in a 5-4 case).

Flora v. United States, 362 U.S. 145 (1960) (granting rehearing of case and concluding that original disposition was correct).

However, because the petition for rehearing in this case focused almost exclusively upon a single clause in the prior opinion-'there does not appear to be a single case before 1940 in which a taxpayer attempted a suit for refund of income taxes without paying the full amount the Government alleged to be due,' 357 U.S. at 69, we feel obliged to comment upon the material introduced upon reargument.


Id. at 167.

Out of the many thousands of refund cases litigated in the pre-1940 period--the Government reports that there have been approximately 40,000 such suits in the past 40 years--exhaustive research has uncovered only nine suits in which the issue was present, in six of which the Government contested jurisdiction on part-payment grounds. The Government's failure to raise the issue in the other three is obviously entirely without significance. Considerations of litigation strategy may have been thought to militate against resting upon such a defense in those cases. Moreover, where only nine lawsuits involving a particular issue arise over a period of many decades, the policy of the Executive Department on that issue can hardly be expected to become familiar to every government attorney. But most important, the number of cases before 1940 in which the issue was present is simply so inconsequential that it reinforces the conclusion of the prior opinion with respect to the uniformity of the pre-1940 belief that full payment had to precede suit.
7.3.2008 10:31am
Simon Dodd (mail) (www):
I agree with PatHMV and SPO - as I see it, the significance isn't so much that one more jurisdiction, in this case a special one, authorizes the death penalty for child rape. It is that Congress recently stamped its imprimatur on the death penalty for child rape, in any jurisdiction. What makes this all the more stark is that in Atkins, the court insisted that counting heads was inapt; a better test was "the consistency of the direction of change." Kennedy throws that test overboard, so the majority's reasoning is impervious to this point, but if Atkins were taken seriously, Congress' action would certainly contribute to the direction and speed of change.
7.3.2008 10:34am
Redlands (mail):
jagbn expressed what has always bothered me about the Supreme Court as national conscience. "Evolving," just means gradual change. Doesn't say in which direction. So I guess evolving back towards Dred Scott would be just peachy so long as it's the consensus. I'm obviously not thinking this through correctly. What am I missing?
7.3.2008 10:37am
Anon321:
I have a sincere question for folks who think that the Court's opinion lacks even the veneer of legal reasoning and who heap derision on the idea of looking for a national consensus. What's a better way to figure out whether a punishment is cruel and unusual?

One answer would be to say that the Constitution doesn't really prohibit practices that are currently cruel and unusual; it just prohibits practices that were considered cruel and unusual in 1791 (or 1868 if a state is doing the punishing and if you believe that the 14th Amendmentment incorporated the 8th).

But that strikes me as atextual (you're basically rewriting the Amendment so that it says "... nor cruel and unusual punishments [as determined by the late-19th-century practice, knowledge, and morality] inflicted"). I'm sympathetic to the benefits of originalism, but it's important to keep in mind that when you're talking about the original expected application being determinative, that's an argument about the proper scope of judicial review, not an argument about determining meaning.

It seems to me that if you're going to try to be true to the text, you need to come up with a way to determine what's cruel and what's unusual. Asking whether the punishment is disproportionate to the crime and whether the punishment serves legitimate penological purposes seems like a reasonable way to try to get at the first question. And asking whether the punishment is typical or out of the ordinary seems like a reasonable way to get at the second question. (Of course, it may be that the court reached the wrong conclusions on these questions in this case, but it's not clear to me that they're the wrong questions to ask.)

To put the underlying question another way -- if you were writing a constitution and you wanted to make sure that no one got punished in a manner that was both really harsh and really atypical, how would you do it? If you wanted to make sure that no one was in a situation where he committed the same crime that thousands of other people commit each year, but that he was sentenced to Really-Harsh-Punishment-A, while everyone else was sentenced to Not-So-Bad-Punishment-B, how would you write it?

Again, maybe the Court went wildly astray in answering these questions. And maybe the inquiry should focus on punishments that are unique, rather than merely out of the oridnary. But I'm curious about how you think the Court should approach the Eighth Amendment, if its current approach is, in your view, self-evidently and horrifyingly wrong.
7.3.2008 10:50am
PatHMV (mail) (www):
Anon321... I've often said that I'd rather have a Court full of Thurgood Marshalls than one full of Kennedys, because you'd have more consistency, more predictability, more intellectual stability.

It would be possible for the Court to say: "The Constitution prohibits 'cruel and unusual punishment,' but it does not define those terms. In our constitutional scheme, this Court is the final arbiter of the meaning of the Constitution. The terms themselves are inherently subjective descriptions. Accordingly, we can do no more than apply our own subjective opinions as to what constitutes a cruel and unusual punishment."

If Kennedy said THAT, he'd be intellectually honest, and we would know that the punishment allowed is simply whatever 5 members of the Court can collectively stomach. Instead, however, one of the things Kennedy doesn't have the stomach for is admitting that his gut is in deed the final arbiter. Even when he ruled the way I wanted him to in the partial birth abortion case, his descriptions of the procedure made it clear that his personal revulsion at the practice was the prime factor behind his decision. All the other stuff he throws out there "direction of change" "foreign opinion," all that garbage, has NOTHING to do with his decision. It is window-dressing and nothing more. And it's dishonest because of it.
7.3.2008 11:04am
Anderson (mail):
Evolving standards of decency -- for some reason, the military just didn't come to mind.




(Snark aside, of course, the military does indeed illustrate evolving standards of decency. But it still sounds funny when you say it.)
7.3.2008 11:11am
Not in NC:
Yikes. I planned to comment to this post, but I don't want to be bashed by a blog author in a future post. I am silenced.
7.3.2008 11:14am
Dr. Guest:
Agree with SPO, Orin, I think your normally fine-tuned analysis is off on this one. If Congress just two years ago said that this type of punishment is morally acceptable, and they passed this law on behalf of the entire Nation, not just six states, that says a hell of a lot about whether this type of punishment is considered beyond the pale. I agree that the evolving standards aspect may only be a part of the analysis, but it's a big part, and there is no way to square such a recent enactment, along with the trend among the states that have addressed this issue in their legislatures, as representing anything other than a movement in favor of the death penalty for such cases.

The opinion may not change, but if it doesn't, it will be a lack of intelletual honesty, not insignificance, that drives that result. The intellectually honest route would require fessing up to a huge error on the pages of the Supreme Court reporter, and I'm not sure that certain Justices would be willing to stamp their name on that.
7.3.2008 11:17am
Andrew Hyman (mail) (www):
Anon 321, for starters, the Court could focus on what is "cruel" to the defendant. It doesn't matter whether Justice Kennedy thinks it's bad policy, or whether he thinks it may cause rapists to kill their victims. Justice Alito devoted half his opinion to weeding out extraneous issues from the majority opinion. Also, if the Court wants to use some "consensus" test, then it ought to do so honestly, instead of inventing a consensus out of thin air. As Alito showed, many states have not yet reinstated the death penalty for child rape because of the expense, not because they think it's cruel. Additionally, the Court could pay some slight attention to what the other two federal political branches think: as demonstrated by this 2006 Act, it's clear that neither the President no Congress view the death penalty for child rape as "cruel" within the constitutional prohibition. Moreover, a better way to determine what is "cruel and unusual" would focus on those two words, instead of swapping them out for other words like "disproportionate." The issue is cruelty, not disproportionality. Furthermore, the Court ought to look at what the framers meant by the word "cruel", and what sort of punishments they viewed as cruel, and then try to analogize to present circumstances. Additionally, the Court might want to take a look at the letter "s" in the word "punishments", and consider whether it signifies that the original aim of the Eighth Amendment was to completely proscribe certain techniques of punishment, rather than to only proscribe them for certain offenses. How's that for a start?
7.3.2008 11:18am
Simon Dodd (mail) (www):
What's a better way to figure out whether a punishment is cruel and unusual?
One way - not that I'm advocating it - might be to say that what is approved by the legislature, so long as it meets the tests of neutrality and generality (that is, it must apply to crimes generally, not to people or classes of people), is ipso facto Constitutional. If the original meaning of the clause was primarily to prevent outlandish punishments meted out by partial judges against disfavored defendants, as some have suggested, holding that it's essentially a political question would be consistent with the text and the original meaning. This isn't to advocate that approach, but it's certainly imaginable and consistently applicable in a way that present doctrine isn't.

As to "[a]sking whether the punishment is disproportionate to the crime and whether the punishment serves legitimate penological purposes," that begs the question: who gets to define what are "legitimate penological purposes"?
7.3.2008 11:18am
OrinKerr:
Not in NC,

WOW. I had planned to comment in this thread, but your criticism of my post has silenced me. I did not realize that I could be criticized by merely blogging. I will never blog again.

(Seriously, Dangermouse actually advocated assaulting Justice Kennedy to teach him a lesson -- I'm not sure why mentioning him in a post is somehow out of line.)
7.3.2008 11:23am
Simon Dodd (mail) (www):
Andrew said:
Alito showed, many states have not yet reinstated the death penalty for child rape because of the expense, not because they think it's cruel.
That, and they might also think Coker foreclosed the matter. Kennedy's reasoning in dismissing that possibility is fairly weak - effectively "well, they couldn't possibly have thought that, because after briefing on and due consideration of the issue, we have concluded that Coker didn't actually say that." That certainly settles the question of whether any states believed that it did; I'm sure Justice Kennedy has never had need to write opinions explaining why a party's sincere reliance on a given case was misplaced, because as we know, all lawyers read all case law exactly the same way, with no disagreement on what is held and what is implied. Obviously.
7.3.2008 11:23am
LM (mail):
Aaron Walker,

If Orin's dig at DangerMouse was low class, then so was my piling on. I can't speak for Orin, but I will for myself and say I hope and believe you're wrong. If you're right, not only would the comment be low class, but it would also make me a hypocrite, since I often nag others here to be more civil. But I don't think the comment was either uncivil or low class. It was intended as good-natured teasing. I try to apply the Golden Rule to what I say, so I wouldn't have said it if I didn't believe the same comment directed at me would elicit a smile. And that's the reaction I would hope for from DangerMouse. If I'm mistaken and DangerMouse is offended, I'll withdraw the comment and apologize.
7.3.2008 11:23am
Dr. Guest:
Also, in Atkins, didn't the Court rely on opinion polls showing that most people were opposed to executing the mentally retarded? Putting aside whether those opinion polls should be relied on, were any similar opinion polls recited by the Majority in Kennedy?
7.3.2008 11:25am
CBM (mail):
I think you unfairly dismiss the significance of this statute. What other instances will federal law be applicable to the rape of a child? This is a crime that is almost exclusively within the province of state law. The military is one of the only exceptions I can think of. The fact that Congress authorized capital punishment in the military context is significant.
7.3.2008 11:35am
stunned:
Has anybody discussed the processes that the SG's Office follows to see how it managed to miss this?

My completely uninformed speculation, given that every single person whose job it was to find this law, is that the way Lexis and Westlaw organize their databases is at the root of this. i.e., I bet when you search their "all federal law" databases, the Uniform Code of Military Justice is not included.
7.3.2008 11:37am
ejo:
if the Supreme Court is no more than a barometer of how five of its lifetime appointees feel, what legitimacy does its pronouncements have? I realize, as lawyers, we are supposed to abase ourselves and coo sweet things about the intellects of the judges, but this decision is not based on the "law". once you divorce the decisions made by the court from the law, there is no legitimacy.
7.3.2008 11:44am
can't recall but curious:
wasn't there some blog traffic after Atkins about whether the opinion misrepresented some state legislatures' moves? My first google try didn't hit it, so I'll try again, but does anyone remember? It was a pickier point than this one, but did boil down to a misstatement of fact about whether a certain state's legislative change was unanimous or something like that. I think the Court relied on an amicus asserting it but the amicus was wrong.

Or I dreamt it all. Anyone else recall this or, better yet, have some detail?
7.3.2008 11:48am
Visitor Again:
So it is the SG's fault for not anticipating that the Supreme Court would declare a national consensus when no such consensus exists? Should the SG regularly pepper the Supreme Court with briefs arguing for various lacks of consensus?

Maybe the SG thought that the court would confine its ruling to the actual case, as it is supposed to do.


The SG's fault was not only in failing to recognize that a recently passed federal law might have bearing on the Court's decision in the Kennedy case, but also in failing to recognize that the decision in the Kennedy case might have bearing on that federal law. Its decision as to whether or not to participate in the Kennedy case by way of briefs and, possibly, oral argument ought to have been made in light of the fact that Congress had recently approved the death penalty for child rape by members of the armed forces. The Justice Department has now acknowledged its error.
7.3.2008 11:48am
PatHMV (mail) (www):
Stunned... I don't think that's it. One, the UCMJ is part of the US Code, like all the rest of the organized statutes. The problem is that the statute in question didn't amend any part of the U.S. Code or any particular section of the UCMJ. It was just sort of a naked statutory command, floating out there.
7.3.2008 11:49am
George Weiss (mail) (www):
BruceM


George: the average civilian breaks about 20 laws a day


source?


a defendant should be acquitted if he can show his behavior was objectively reasonable under the circumstances - in all cases - lack of knowledge of the law should be a legitimate defense. "I didn't know murder was illegal" would probably not work, but "I didn't know possessing a rock from a cave without papers was a crime" is not only reasonable, it's hard to believe the contrary.


but where do you draw the line here. there is going to be an insentive to ignore the law. Statutory rape is a good example. Im concerd about the (majority) of states that forcloser mistake of fact ("she told me she was older") as a defesne. But if "i didnt know it was illegal just becuase she was young-she told me she wanted to" is a defense-then the gov would have to show that the guywas lying and didnt have that in mind. really tough to prove...

how about "i didn't know drinking and driving was illegal" was bad. sure, most people know thats bad. but how much alcohol. most states have a per se rule of .08bac and also a test for sobriety where you can be convicted under that if shown impaired. suppose the guy says "i thought it was .10 bac"... how are you going to litigate that?
7.3.2008 11:50am
josh:
Andrew Hyman

I support the outcome of the case, but you make one of the best arguments against it I've heard so far.

I'm still troubled though by what I see as the inability by anyone to come up with the bright-line rule for what "cruel and unsual" means when it's obviously so subjective (whether Kennedy was "dishonest" about it or not, it's still the necessary inquiry).

For me, the best way to approach it is to create as many fact patters as possible and analogize. IE, murder sentence for petty theft, for battery, for defemation, etc. I don't posit any solution, just wonder how a court would hold based on the suggestions you make in response to Anon 321.

For example, much of the "consensus" test, whether intellectually honest or not, doesn't help b/c I doubt that anyone has seriously spoken on it. I suppose we could look at other state's punishments for same crimes as guidance, but that's not to say those states have declared the parameters for "cruel and unusual" simply because they have chosen less cruel and less unusual punishments. It's perfectly reasonable to believe that states choose monetary penalties, for example, for theft even if they think some greviously harsher penalty is not cruel and unusual.

Obviously, somewhat of an extreme example, but I feel it helps to flesh out the extremes to find the right solution on subjective matetrs such as this.
7.3.2008 11:53am
Richard Aubrey (mail):
Two questions have been addressed, one incorrectly:
Whether or not the UCMJ's call for capping child rapists should apply, or be extended to apply to civilian cases is not the appropriate question.
The question Kennedy was pretending to address is the evolving standards of decency as demonstrated by, among other things, a lack of federal law calling for capping the bastards. Now that we know Congress, far more representative than the Supremes, may well have represented public feelings on the subject, we see that Kennedy was more wrong than before we knew that. So does he, the difference being he doesn't care.
7.3.2008 11:55am
Aaron Walker (mail):
LM,

To me its the fact it is in the main post and not a comment that makes the difference. But i am not going to belabor it.
7.3.2008 12:17pm
martinned (mail) (www):
It would be possible for the Court to say: "The Constitution prohibits 'cruel and unusual punishment,' but it does not define those terms. In our constitutional scheme, this Court is the final arbiter of the meaning of the Constitution. The terms themselves are inherently subjective descriptions. Accordingly, we can do no more than apply our own subjective opinions as to what constitutes a cruel and unusual punishment."

If Kennedy said THAT, he'd be intellectually honest, and we would know that the punishment allowed is simply whatever 5 members of the Court can collectively stomach. Instead, however, one of the things Kennedy doesn't have the stomach for is admitting that his gut is in deed the final arbiter. Even when he ruled the way I wanted him to in the partial birth abortion case, his descriptions of the procedure made it clear that his personal revulsion at the practice was the prime factor behind his decision. All the other stuff he throws out there "direction of change" "foreign opinion," all that garbage, has NOTHING to do with his decision. It is window-dressing and nothing more. And it's dishonest because of it.


@PatHMV: He did say that, though, didn't he? I already quoted this in the previous thread, but here it is again:


"In these cases the Court has been guided by “objective indicia of society’s standards, as expressed in legislative enactments and state practice with respect to executions.” Roper, 543 U. S., at 563; see also Coker, supra, at 593–597 (plurality opinion) (finding that both legislatures and juries had firmly rejected the penalty of death for the rapeof an adult woman); Enmund, supra, at 788 (looking to“historical development of the punishment at issue, legislative judgments, international opinion, and the sentencing decisions juries have made”). 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, page 10. (Emphasis added.)
7.3.2008 12:47pm
SIG357:
Second, the evolving standards inquiry is only part of the doctrinal picture. The Court supplements that with its own independent "judgment."

Topic for discussion: which one of these explanations is lamer? The argument from it's own "judgement" looks disturbingly like "because five of us say so".
7.3.2008 1:15pm
SIG357:
I realize, as lawyers, we are supposed to abase ourselves and coo sweet things about the intellects of the judges

I'm coming to the conclusion that the job of judging is too important to be entrusted to lawyers. I'd feel a lot better if the ranks of judges were filled with former cops, engineers, and doctors. In other words, with people not trained to dissemble for a living, and who did not go to school with the idea of one day being able to impose their will on the entire country.

Like intestinal bacteria, lawyers do serve a useful purpose. But they don't belong anywhere near postions of authority.
7.3.2008 1:23pm
DangerMouse:
LM, no need to apologize on your part. And also, I don't interpret Orin's post as an attack on me at all, and even if it's supposed to be one, it's more of a taunt than anything of substance, and certainly isn't unexpected.

If anyone has read my comments on this blog, it should be clear by now that I think the Supreme Court is a complete sham. Occasionally it gets things "right," but the power it holds as a Super Legislature is so far beyond what the Framers envisioned that as an institution, I think it's an enemy of freedom. Kennedy just happens to embody a lot of what I view as wrong with the Court. I'd love to see a lot of impeachments, the restriction of jurisdiction, the elimination of many district and appellate courts (the less courts, the better), etc, maybe the wholescale revision of Article III. Personally, I think I'd be more satisfied in vindicating my rights in a duel than in a case before the Supreme Court, because at least the duel would be fair. I think it's clear, also, that Kennedy is a corrupt judge (among others) because he is incredibly biased. He's not the only one, just the latest in a series of corrupt judges.

It's to be expected that people who make their lives hanging on every word the Court says would resist someone like me. But either the Court will continue to rule over our lives, or it won't. I don't think that the American people will buy into the Court much longer if they keep issuing decisions like this. Certainly, law school students know that the decisions are shams that mask the judge's biases. Once they become lawyers, however, they have an interest in protecting the system to the detriment of democracy and freedom. Or, maybe Americans will continue to buy into it. American democracy can't last forever, after all.

I don't think I need to defend my criticism of Kennedy on the specific case at issue. His "opinion" was complete and utter garbage, as others have pointed out to great degree. People are not morons and know when they're being shamed. Kennedy's opinion was a complete sham.
7.3.2008 1:29pm
Horatio (mail):
The true nature of bureaucrats and their regulations. The author is Ayn Rand. These quotes are from page 411 of my edition of Atlas Shrugged. Basically, Value Creator Hank Rearden has been accused of breaking some regulations the bureaucrats have made about Rearden's steel business having to do with how much or little steel he may produce, when, and to whom he may sell or not sell.

Says the bureaucrat Floyd Ferris: "You honest men are such a problem and such a headache. But we knew you'd slip sooner or later . . . [and break one of our regulations] . . . this is just what we wanted."

Rearden: "You seem to be pleased about it."

Bureaucrat Ferris: "Don't I have good reason to be?"

Rearden: "But, after all, I did break one of your laws."

Bureaucrat Ferris: "Well, what do you think they're there for?"

Continues bureaucrat Ferris: "Did you really think that we want those laws to be observed? We want them broken. You'd better get it straight that it's not a bunch of boy scouts you're up against . . . We're after power and we mean it. You fellows were pikers, but we know the real trick, and you'd better get wise to it. There's no way to rule innocent men. The only power any government has is the power to crack down on criminals. Well, when there aren't enough criminals, one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws. Who wants a nation of law-abiding citizens? What's there in that for anyone? But just pass the kind of laws that can neither be observed nor enforced nor objectively interpreted [Frederick Mann: Obfuscation of meaning is a key element of the con games bureaucrats and politicians play.] - and you create a nation of law-breakers - and then you cash in on guilt. Now that's the system, Mr. Rearden, and once you understand it, you'll be much easier to deal with."
7.3.2008 1:45pm
OrinKerr:
DangerMouse,

I'm curious -- in what sense do you think Kennedy is "incredibly biased"? Biased in favor of or against what?
7.3.2008 1:48pm
ejo:
read some older law books. you will find shorter opinions. you will also find that the judges and justices knew what to keep their noses out of in a way that the current legal profession does not. certainly, the legal system didn't intrude into the prosecution of WWII in the way the it seeks to today. I don't have any reason to suspect that the lawyers and judges back then were any dumber than the lawyers and judges of today(in fact, just the opposite as they appeared to have enough sense to realize their limitations in a way that Kennedy does not). Will the Court pay for it in the long run as DM suggests? I sure hope so because the alternative is a court run amok.
7.3.2008 1:49pm
PatHMV (mail) (www):
martinned... my point is that in reality the latter is the ONLY standard followed by Kennedy. The analysis of the "objective" criteria is done only for show, it does not, will not actually affect the outcome of any case for him.
7.3.2008 1:53pm
namless:

Kennedy's opinion doesn't even maintain a plausible veneer of proper legal reasoning. And the result is horrifying. i don't know anyone, liberal or conservative, who agrees that if the death penalty is allowed, that these bastards don't deserve it.


Now you do. I am a former child victim of a violent sexual assault.

As horrible as that was, I do not believe that my attacker deserved to die in a state sanctioned, sanitized, painless medical procedure. Perhaps if the death penalty involved evisceration with rusty fishhooks or being flayed alive, I might reconsider.

I'd rather he get to spend the rest of his days in a prison, being subjected to the constant threat of the kind of forced rape I experienced, with no control over his day to day life, and no opportunity to exercise any real control over his circumstances. Death by Hepatitis C or AIDS contracted from one of his fellow inmates will be sufficient for me.

And I'm a liberal.
7.3.2008 1:57pm
Sarcastro (www):
Dangermouse is correct once again! Whatta champion!

Though the other 4 of the Heller Junta seem almost as corrupt as Kennedy, Kennedy's just such a TEASE about being Conservative! I think he deserves extra punishment for that alone.

As for Article III, I say just ammend the Constitution to say that only Strict Constructionalists need apply. Also we should cancel Marbury. Why the Supreme Court hasn't yet decided the Federal Budget on Constituional grounds mystifies me.
7.3.2008 1:59pm
martinned (mail) (www):
@PatHMV: How can you tell? Compared to previous cases, the headcount here came out particularly "bad" for the state. The opinion does not say how heavily each prong of the test weighs, how it is all added together. I'm not even sure if it is possible to make such a question explicit in an opinion. So how can you tell?

In other news, how about this remark by Marty Lederman on Convictions:


So, let's assume that the states were unaware of it. And so was the SG's office and the rest of DoJ. And possibly even most or all of the relevant authorities at DoD. And all of the amici. And the court and its numerous clerks. And that this provision was included on the 129th page (in Statutes at Large) of a 420-page omnibus authorization bill. And that the provision was not discussed in the Conference Report (except where the bill language was set out). And that it was not so much as mentioned, let alone debated, by any legislator on the floor of the House or Senate. (My own cursory Westlaw search confirms this!) If all that is true—if virtually none of the legislators who voted for the bill knew about this amendment to the UCMJ, and it received no public attention whatsoever, for almost three years after its appearance in the bill and more than two years since the president approved it, and it was never implemented, and none of the very fine lawyers working on the case in the government or outside it discovered it in their legal research, then is it really the case, in any meaningful sense, that its enactment "undercuts, to say the least," the court's assumption that there is a "national consensus against capital punishment for the crime of child rape," as Chuck suggests?
7.3.2008 2:00pm
SPO:
martinned, you raise a good point, but ultimately one that has to be rejected--are we really going to say, well gee, when the Congress passed this law, they really didn't mean it. I don't think you can really do that.

Second, I don't think anyone can suggest that, assuming that the Congress counts, that the headcount is bad. Congress represents the nation. Congress weighing in significantly buttresses the headcount.
7.3.2008 2:09pm
Anon #319:

I agree with PatHMV and SPO - as I see it, the significance isn't so much that one more jurisdiction, in this case a special one, authorizes the death penalty for child rape. It is that Congress recently stamped its imprimatur on the death penalty for child rape, in any jurisdiction. What makes this all the more stark is that in Atkins, the court insisted that counting heads was inapt; a better test was "the consistency of the direction of change." Kennedy throws that test overboard, so the majority's reasoning is impervious to this point, but if Atkins were taken seriously, Congress' action would certainly contribute to the direction and speed of change.


I agree; 'count' me too. As a possible counter-argument, is there any reason to think the Eighth does not apply to military law?
7.3.2008 2:13pm
ejo:
biased in conflating his own personal opinion with the Constitution? while cynics are always able to suggest that the law is whatever the judges say it is, a judicial opinion completely unmoored from the law is no better than a fiat issued by a dictator.
7.3.2008 2:21pm
martinned (mail) (www):
@SPO: Some kind of presumption that all laws passed by Congress pass muster, which is what some commenters have suggested, goes against the very starting point of the bill of rights: that it exists to restrain Congress.

Otherwise, I think Levinson's point wasn't that this law shouldn't count, but that it shouldn't count very heavily since it highly questionable whether it really expresses some kind of consensus. And even if it does, it isn't a very highly debated one, to say the least. After all, the point of the head count is to have some objective measure of what the people think. So big states weigh heavier than small ones, and carefully debated bills, possibly even with citizens' initiatives, count heavier than something stuck on page 127 of an omnibus bill that no one read at the time and no one realised existed since.
7.3.2008 2:23pm
SPO:
I don't think there's any reason to worry about whether the 8th Amendment applies. Remember, the issue is the moral judgment of society, as expressed through its legislatures. It is nonsensical to think that it is beyond the pale to execute civilian child rapists but not beyond the pale to execute military members who rape children.
7.3.2008 2:24pm
krs:
I agree with SPO, but there is kind of a funny "tree falling in the forest with no one to hear it" quality to this legislation, as the quoted comment from Marty Lederman points out.
7.3.2008 2:25pm
PatHMV (mail) (www):
martinned... that might go to the weight which should be given it, but because Congress DID pass it, then it is entitled to at least some weight in the alleged "objective" calculation being done in the equation being used by Justice Kennedy for today's case.

As for all laws being presumed to pass constitutional muster, you'll have to take that up with the Court because that presumption goes WAY back, and has never been undercut, so far as I know, by even a single member of the Court. It's certainly not an irrebutable presumption and of course it shouldn't be, or we would have no need for the Court. But as a co-equal branch of government, the Court can hardly presume as an initial matter that the legislative branch ignored its own Constitutional responsibilities and passed an unconstitutional law. The burden has to be on the side claiming that Congress (or the state legislature) acted outside of the Constitution in passing the law in question.
7.3.2008 2:34pm
martinned (mail) (www):
@PatHMV: I think no one would dispute that the fact that Congress passed this law should show up somewhere in the head count.

Also, I apologise for my carelessness in phrasing. What I meant of course was an irrebuttable presumption of constitutionality, the way we have it in the Dutch constitution.
7.3.2008 2:36pm
SPO:
martinned, I still don't see how the national legislature, through enactments, counts less than states.

And this observation: "Some kind of presumption that all laws passed by Congress pass muster, which is what some commenters have suggested, goes against the very starting point of the bill of rights: that it exists to restrain Congress"

puts the cart before the horse. The statute is evidence of what society thinks. And from that evidence, the Court discerns the whether a consensus exists. It just seems a very hard road to hoe to argue that a national consensus exists against something that Congress specifically authorized.
7.3.2008 2:45pm
Tony Tutins (mail):

What other instances will federal law be applicable to the rape of a child?

Federal criminal law would apply to a child raped on federal property. It seems likely here that the man who rapes a child at Fort Bragg would be hanged if he were a soldier (and subject to the UCMJ), but not if he were a civilian contractor.
7.3.2008 2:48pm
martinned (mail) (www):
@SPO: I'm not sure if Congress would count less. Instead, it's more a matter of according each instance the weight it deserves, instead of mechanically adding up.

Your second point is true enough. My response is first of all to point you to Federalist no. 78, which I quoted in the previous thread, where Hamilton envisages the court as standing between Congress and the people. (His words, not mine.) Secondly, since the purpose of the Bill of Rights can also be viewed as protecting the minority against the majority, those who don't vote against those who do, etc., the "national consensus" can never be wholly dispositive, as indeed it isn't.
7.3.2008 2:54pm
Thomas_Holsinger:
I agree with BruceM that the quite different nature and objectives of military disicpline mean that the Court could easily uphold the UCMJ death penalty for child rape even with Kennedy v. Louisiana. There are many UCMJ offenses which not merely have no civilian counterparts, but would be unconstitutional if applied by a general criminal statute to civilians.

The omission of this offense from the ruling means nothing.
7.3.2008 2:56pm
TomHynes (mail):
Can we go off topic to talk about spelothem law?

<i>For example, it is illegal to sell or offer to sell any speleothem in Texas, or export them
for sale outside Texas, without written permission from the
owner of the cave from which the speleothems were removed. Doing so could result in up to 2 years in the state jail.</i>

Would the law stand up under antitrust scrutiny? I am sure lots of manufacturers would like the ability to jail those who resell their products without permission.
7.3.2008 2:58pm
martinned (mail) (www):
@TomHynes: I'm sorry, there is a doctrine in Antitrust law, of which I tragically cannot remember the name, which says that, since the first amendment protects the right of a citizen to petition the government, such a request cannot be a Sherman Act violation. So unless you want to talk pre-emption, the law stands.
7.3.2008 3:08pm
SPO:
Thomas, the differences in the purposes of military justice and civilian justice are nil when it comes to punishing child rapists. Thus, that argument really doesn't wash/

Well, martinned, the court has certainly said that the national consensus doesn't end the matter, but to fly in the face of it is a little more difficult. I suspect they would have gotten to the same results. But of course, that just makes the decision all that more illegitimate.
7.3.2008 3:09pm
martinned (mail) (www):
@TomHynes: I looked it up (of course). It's called the Noerr-Pennington doctrine. Eastern R.R. Presidents Conf. v. Noerr Motor Freight, Supreme Court February 20, 1961, 365 US 127 and United Mine Workers v. Pennington, Supreme Court June 7, 1965, 381 US 657.

@SPO: Thought experiment (for real, I'm not sure about the answer, myself): Which represents more of a "national consensus", a majority in both houses of Congress, or 50 majorities in state legislatures? In theory, they could both be based on the view of 50% + 1 of the population, so the only difference could be one of distribution. But still...
7.3.2008 3:12pm
SPO:
Who the hell knows? If 50 states pass something, that's pretty persuasive. So I guess I'd go with the 50 states.

But none of that matters. The Supreme Court does what it wants.
7.3.2008 3:26pm
martinned (mail) (www):
SPO said: Who the hell knows? If 50 states pass something, that's pretty persuasive. So I guess I'd go with the 50 states.

I think I would, too. But then that means that it is possible to imagine stronger evidence of "national consensus" than a bill passed by Congress. So then we're back to the Court considering all the (recent) votes on the type of law under consideration, giving each its due weight to establish some proxy of national consensus, and adding to that the weight of its precedent and its independent (and by definition unbound by law or precedent) assessment. That's not the same as the Court doing "what it wants".
7.3.2008 3:36pm
Bill Poser (mail) (www):
What surprises me is that there isn't a database of all laws imposing the death penalty maintained by one of the organizations opposed to the death penalty. Surely some such organization keeps track?
7.3.2008 3:43pm
chiefbreakevryting:
Anon321,

In my opinion, Kennedy would have done better had he said something like this:

The issue before the Court is whether executing child rapists violates the Eight Amendment proscription against cruel and unusal punishemnt. Our previous decisions contemplated some ethereal and subjective hokum about evolving standards of decency. Such concepts are the doctrinal genes of the Court evolving into a council of unrestrained philosopher-kings, and such reasoning will not be followed here.

We therefore begin and end the inquiry with the nature of execution, i.e. that when used by the state it is a form of justified homicide. The lynchpin of justification as it relates to homicide is necessity, or at a minimum reasonably perceived necessity. We thus ask if the state must necessarily use deadly force against a convicted child rapist to accomplish a legitimate societal and governmental purpose. If no such necessity is present, we assume that there is a potential that such punishment, being unneccessary, is inflicted to satisfy the emotional and vengeful instincts that inhere in human nature, and which are precisely the transient and visceral uses of government force that the Eighth Amendment seeks to restrain. The Court notes in passing that if the Petitioner were present at oral argument that We would be tempted to use our gavel in a manner beyond the ceremonial. We find that the prohibition against cruel and unusual punishments now, as at the time of the founding, is intended to proscribe those punishments, not that changing attitudes regard as "indecent" (indeed, proportionality suggests that an indecent punishment is appropriate to an indecent crime) but which are invoked primarily for the emotional satisfaction of those outraged by the crime. This is a factual, not a moral inquiry. The understandable expression of outrage for outrageous crimes is not an interest recognized by the Eighth Amendment.

So we then inquire into the necessity of death as a sanction for child rape. We note immediately that one of the accepted purposes of punishment, rehabilitation is foreclosed by execution. Another such purpose, removing the offender from society, is acomplished by execution, but we cannot say as a matter of either law or fact that such is necessary. We are then left with the matter of retribution. The question for decision is thus: is it necessary for the state to kill a child rapist to vindicate a legitimate right of the people of the state, or of the victim, to retribution. Intelligent peeople can think yes, but in fact, there are jurisdictions that apparently deal with child rapists with a harshness short of death, and which seem to incur no significant detriment as a result. We therefore cannot say that execution of child rapists is facially necessary to accomplish the recognized purpose of retribution. Nor can we however say that this is never the case. The same reasoning of course could be applied to murder, and We have recognized a legitimacy to executing killers.

The interest that the Court recognizes in allowing for the execution of murderers is that there is a degree of wantonness and depravity in certain crimes that is so injurious to the legitimate interests of a civilized people that it accepted as a matter of reason, moreso than morality or decency, that death is not invoked for emotional satisfaction or because the perpetrator deserves to be treated with cruelty. The death penalty in such cases has been determined by legislative authority to be necessary to the purpose of retribution, and we cannot say as a matter of COnstitutional Law that they are wrong. We find, however that the Louisiana child rape statute does make such a necessary distinction, yada, yada yada, and therefore, because this result happily conforms to the opinion of my mailman and others on whom I rely to gauge standards of decency, the statute is unconstitutional.
7.3.2008 3:44pm
SPO:
martinned, yes it is. The Congress allows this. The Congress. How in the world is it possible to say that, in the face of a Congressional enactment, that a national consensus exists against what Congress has done. Perhaps, it's possible that Congress could be the last one to repeal something, but let's look at the facts here. States are not repealing these laws, but enacting them. Plus, let's not forget too that a failure to enact a law does not mean that the polity has concluded that it is beyond the pale. Face it martinned, I like the result too, I don't think that child rapists should be executed (it incentivizes killing them), but this decision is a load of hooey. There's no polishing this turd.
7.3.2008 4:00pm
SPO:
Here's a question . . . . what about Roper? The military allows 17 year olds to serve. Did the UCMJ bar the death penalty for 17 year olds when Roper was in place? If not, I'd say that case has a problem (among many others).
7.3.2008 4:18pm
Ariel:
I'm curious about one point that DangerMouse brought up - about restricting the federal courts jurisdiction to hear certain kinds of cases. I know that there used to be an amount in controversy requirement for federal questions. Would it be possible to restrict the federal courts' ability to hear a certain class of questions?

For example, I'm not a huge fan of the Boumedienne decision. If the Congress chose to strip the courts of the ability to hear a habeas petition of an enemy combatant, what would happen? What happens if neither a state nor a federal court can hear a claim?

IIRC, the federal courts' ability to hear questions can be limited by an act of Congress. But would this create a Constitutional crisis, if Congress were to say that the federal courts cannot hear a claim that the USSC has decided that they must hear?
7.3.2008 4:41pm
Thomas_Holsinger:
SPO,

I said, "could", not "would" - that they could if they wanted to. Your analysis uses methodologies - logic, reason, etc. - foreign to the majority opinion in Kennedy v. Louisiana. Justice Kennedy decides the outcome first and bothers with analysis only as an afterthought.

"Sentence first - verdict afterwards."
7.3.2008 4:44pm
Thomas_Holsinger:
Ariel,

That has already happened. The Supreme Court ignores Congressional restrictions on its jurdisdiction. This is an impeachable offense, but neither of the other branches will call them on it. Welcome to the world of the imperial judiciary.
7.3.2008 4:47pm
Andrew Hyman (mail) (www):
Justice Scalia once wrote an opinion regarding the Eighth Amendment that is worth reading. See Harmelin v. Michigan, 501 U.S. 957 (1991). He was joined by Chief Justice Rehnquist in writing the following: "what was 'cruel and unusual' under the Eighth Amendment was to be determined without reference to the particular offense." So, if thumb screws were cruel and unusual for one offense, then they were cruel and unusual for all offenses. That's the way it was supposed to work.

Scalia also proved that this is so, using the text of the Eighth Amendment, which also prohibits "excessive fines". That provision regarding excessive fines would have been superfluous if the "Cruel and Unusual Punishments" clause also prohibited excessive (i.e. disproportional) punishments.
7.3.2008 6:00pm
Ariel:
Thomas - I'm a rising 2L and we definitely didn't study that - do you have a cite, so I can learn more? Thanks in advance.
7.3.2008 6:43pm
Thomas_Holsinger:
Ariel, Congress twice amended statutory habeaus and removed the Court's jurisdiction after Rasul v. Bush. The first time the Court said, "Nah, we still have jurisdiction." So Congress did it over per the Supreme's purported specifications.

Whereupon the Court said that it don't matter what Congress or the President do or say, because the Court, and does, change the basis for its ruling from statutory habeas to constitutional habeas. "So there, Suckers! We can do whatever we want because we are the final authority on the Constitution!"

Here's the link and quote, followed by the consequences. Both block quote and italics seem to be disabled so your eyes may glaze over.

BOUMEDIENE et al. v. BUSH, PRESIDENT OF THE UNITED STATES, et al.

"...While appeals were pending, Congress passed the Detainee Treatment Act of 2005 (DTA), §1005(e) of which amended 28 U. S. C. §2241 to provide that "no court, justice, or judge shall have jurisdiction to ... consider ... an application for ... habeas corpus filed by or on behalf of an alien detained ... at Guantanamo," and gave the D. C. Court of Appeals "exclusive" jurisdiction to review CSRT decisions. In Hamdan v. Rumsfeld, 548 U. S. 557, 576-577, the Court held this provision inapplicable to cases (like petitioners') pending when the DTA was enacted. Congress responded with the Military Commissions Act of 2006 (MCA), §7(a) of which amended §2241(e)(1) to deny jurisdiction with respect to habeas actions by detained aliens determined to be enemy combatants, while §2241(e)(2) denies jurisdiction as to "any other action against the United States ... relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement" of a detained alien determined to be an enemy combatant. MCA §7(b) provides that the 2241(e) amendments "shall take effect on the date of the enactment of this Act, and shall apply to all cases, without exception, pending on or after [that] date ... which relate to any aspect of the detention, transfer, treatment, trial, or conditions of detention of an alien detained ... since September 11, 2001."

The D. C. Court of Appeals concluded that MCA §7 must be read to strip from it, and all federal courts, jurisdiction to consider petitioners' habeas applications; that petitioners are not entitled to habeas or the protections of the Suspension Clause, U. S. Const., Art. I, §9, cl. 2, which provides that "[t]he Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it"; and that it was therefore unnecessary to consider whether the DTA provided an adequate and effective substitute for habeas.

Held:

1. MCA §7 denies the federal courts jurisdiction to hear habeas actions, like the instant cases, that were pending at the time of its enactment. Section §7(b)'s effective date provision undoubtedly applies to habeas actions, which, by definition, "relate to ... detention" within that section's meaning. Petitioners argue to no avail that §7(b) does not apply to a §2241(e)(1) habeas action, but only to "any other action" under §2241(e)(2), because it largely repeats that section's language. The phrase "other action" in §2241(e)(2) cannot be understood without referring back to §2241(e)(1), which explicitly mentions the "writ of habeas corpus." Because the two paragraphs' structure implies that habeas is a type of action "relating to any aspect of ... detention," etc., pending habeas actions are in the category of cases subject to the statute's jurisdictional bar. This is confirmed by the MCA's legislative history. Thus, if MCA §7 is valid, petitioners' cases must be dismissed. Pp. 5-8.

2. Petitioners have the constitutional privilege of habeas corpus. They are not barred from seeking the writ or invoking the Suspension Clause's protections because they have been designated as enemy combatants or because of their presence at Guantanamo. Pp. 8-41 ..."

The Enemy Detainee Mess

“... It is already clear to nearly everyone in the Administration that it will be impossible for the U.S. to hold most detainees from now on. That's true not merely at Gitmo, but even in Afghanistan, Iraq and other foreign battlefields. Earlier this month, lawyers filed a lawsuit on behalf of a detainee held at the U.S. military prison at Bagram air base near Kabul. It's only a matter of time before suits are filed demanding habeas writs for anyone captured and held by GIs for any length of time anywhere in the world.

Regrettably, the Administration will now have to let most enemy fighters go. The burden of gathering enough evidence to meet the habeas standards of U.S. federal courts is simply too great under battlefield conditions – and in any case is far too dangerous. This week a panel of the D.C. Circuit Court of Appeals rejected the enemy combatant status of a Gitmo detainee captured after training in al Qaeda camps in Afghanistan. The press has reported this as if the Bush Administration had invented a case against an innocent shepherd. But the truth is that in the fog of battle it is impossible to gather evidence the way a Manhattan cop can. There's no "CSI: Kandahar."

While GIs gathered shell casings or interviewed witnesses to meet a U.S. judge's habeas standard, they would leave themselves open to counterattack or sniper fire. No commander – and no Commander in Chief – can ask his troops to put themselves in danger to satisfy Justice Kennedy's legal afflatus. This is what Justice Antonin Scalia meant when he wrote that Americans will die as a result of Boumediene ...”

"And do not suppose this is the end. This is only the beginning of the reckoning. This is only the first sip, the first foretaste of a bitter cup which will be proffered to us year by year unless by a supreme recovery of moral health and martial vigour, we arise again and take our stand for freedom as in olden time." Winston Churchill.

Thomas_Holsinger:

The Supreme Court is final only until it isn't. "Those whom the gods would destroy, they first make mad." Euripides.

At some point we will have a President who will invoke separation of powers, fight for his office and tell Congress to impeach the Supremes, impeach him or do nothing but watch while he defies contempt of court.

This would require a President with energy, which is the major reason why it hasn't happened under the current President.
7.2.2008 9:50pm"
7.3.2008 7:33pm
martinned (mail) (www):
@Andrew Hyman: There are actually two distinct lines of precedent for the cruel &unusual clause: The one that you cite, and the one that forbids punishment that is disproportionate to the crime. I'm just not entirely sure which of the two was applied in Kennedy.

@chiefbreakevryting: That sounds about right, and probably explains pretty well what many of the justices were thinking. The only problem is that the part where you explain why executing murderers is still OK is a bit weak. (Which is pretty much why most of the world considers all capital punishment to be wrong.)
7.4.2008 6:47am
trad and anon:
I said, "could", not "would" - that they could if they wanted to. Your analysis uses methodologies - logic, reason, etc. - foreign to the majority opinion in Kennedy v. Louisiana. Justice Kennedy decides the outcome first and bothers with analysis only as an afterthought.
Can you teach me your mind-reading powers too?
7.4.2008 11:45am
chiefbreakevryting:
martinned,


The only problem is that the part where you explain why executing murderers is still OK is a bit weak.


I don't disagree. However, unless the Supreme Court was going to apply the "necessary" standard to invalidate all capital punishment, which I don't think Kennedy is willing to go along with, and why he explicitly says the death penalty is OK for child rape if the victim is killed, he has to give some rationale for it. Otherwise his reasoning invalidating death for child rape would invite the rebuttal "the argument must be wrong, because if that's the case we wouldn't use the death penalty for murder either." On the other hand, if the Court were to give too much deference to this "retribution" thing, it would invite the question "well if killing someone is legitimate retribution for murder, why not for child rape?" And of course, if the Court were to say "the rest of the world doesn't do it," that would open a whole new can of worms. In other words, the Court would need to say something about retaining capital punishment in murder cases, even though it is quite probable that they are looking down the road to getting rid of that too.

I personally am not a death penalty fan. I believe that governments should be very, very cautious about finding deaths to be necessary, for reasons that I refer to here.
7.4.2008 12:30pm
CiarandDenlane (mail):
I'm surprised that most commenters think a petition for rehearing will be denied. I realize that such petitions seldom are granted, but given a) the prominence of the mistake; b) the likelihood the SG will get behind the petition and, most importantly, c) the stark fact that a recent Act of Congress -- enacted by representatives drawn from across the nation -- fundamentally undercuts the evolving standards rationale for the decision, I wouldn't bet against a rehearing. If folks thought that a rehearing grant was unlikely because of inertia, I'd not be too disturbed. I appreciate the force of Justice Jackson's comments on its power. But to the extent that the no-rehearing prediction is based on cynicism, the notion that Justice Kennedy won't face facts and issue an honest reappraisal, I am disheartened. (I'm not sure the "cynicism" rationale, btw, applies to some [all] of the more "liberal" justices who would have found against the death penalty whatever the poll of the polities might have shown; but the poll was crucial for Kennedy, and I assume he will act accordingly when he is able to take into account the overlooked datum of federal law.)
7.4.2008 1:47pm
Thomas_Holsinger:
CiarandDenlane,

I support the death penalty, disagree with this ruling and was appalled at the majority's reasoning both because of its incoherence and because it clearly leads to judicial abolition of the death penalty in general. I practice in California and remember how the California Supreme Court lead by Rose Bird tried this - the voters threw her and two other justices out in a retention election because of it. The opinion in Kennedy v. Louisiana is clearly, clearly, headed down the same path of the Rose Bird court in terminating the death penalty.

However I do not feel this ommision was material or merits a rehearing. Should one be granted, I predict the only change will consist of a new footnote.
7.4.2008 2:17pm
BruceM (mail) (www):
George: source = experience, corroboration, and deep reflection.

but where do you draw the line here. there is going to be an insentive to ignore the law. Statutory rape is a good example. Im concerd about the (majority) of states that forcloser mistake of fact ("she told me she was older") as a defesne. But if "i didnt know it was illegal just becuase she was young-she told me she wanted to" is a defense-then the gov would have to show that the guywas lying and didnt have that in mind. really tough to prove...

As I said, the defendant has to show his actions were objectively reasonable. He can do that however he wants. If the government proves every element of an offense, it should raise a rebuttable presumption that the defendant is guilty. The defendant can rebut it by convincing a jury, in any plausible way, that his actions were nonetheless reasonable under the circumstances. Criminal cases SHOULD be tough for the government to prove, and the whole concept that "mistake of fact is no defense" - especially for the poor guy who picks up a girl at a 21+ bar, the girl said she was 21, had a fake ID, and looked 23, but is actually 16. That he can't defend his actions as reasonable and argue mistake of fact is a fundamental violation of due process IMHO.

Whether the defense is self-defense, diminished capacity, didn't know it was illegal, victim needed killing, or "victim was a stinkin' smelly n*gger," a defendant should be allowed to try to convince a jury his actions were objectively reasonable and, if so, be acquitted.

After all, crimes are just actions society agrees are objectively unreasonable. Why should there be an unrebuttable one-way presumption just beacuse the legislature passes a statute.

Prosecutors jobs are easy enough, they don't need extra help by barring defendants from using logical, common-sense, and often TRUE defenses. If it makes their job harder, good - we have more than enough people in prison.
7.4.2008 3:11pm
Andrew Hyman (mail) (www):
Martinned, <i>Kennedy v. Louisiana</i> was a disproportionality case. No justice was arguing that the death oenalty is cruel for *all* crimes, only that it is disproportinal (i.e. excessive) for the crime of child rape.

Aside from the very dubious nature of the Court's diproprtionality doctrine, there's a very strong argument that the Court's "evolving standards of decency" test is a misinterpretation of the constitutional text.

Professor John Stinneford has a 2008 law review article up at SSRN, titled “The Original Meaning of 'Unusual': The Eighth Amendment as a Bar to Cruel Innovation”, Northwestern University Law Review, Vol. 102, No. 4 (2008). Stinneford asserts that the "evolving standards" test misinterprets the Eighth Amendment:

The Framers of the Bill of Rights understood the word “unusual” to mean “contrary to long usage.” Recognition of the word’s original meaning will precisely invert the “evolving standards of decency” test, and ask the Court to compare challenged punishments with the longstanding principles and precedents of the common law, rather than shifting and nebulous notions of “societal consensus” and contemporary “standards of decency.”
7.4.2008 3:44pm