Harvard law professor Laurence Tribe has an interesting article in today's WSJ on the Supreme Court's decision invalidating the death penalty for child rape and its potential reconsideration by the Court. Here's a taste:
Emphasizing the evolving character of what constitutes an "unusual" if not an unduly "cruel" punishment, the court rested its condemnation of executing the rapists of children largely on what it described as a trend away from the use of death to punish such crimes both here and abroad.
But there was a problem with the court's understanding of the basic facts. It failed to take into account — because nobody involved in the case had noticed — that in 2006 no less an authority than Congress, in the National Defense Authorization Act, had prescribed capital punishment as a penalty available for the rape of a child by someone in the military.
Defenders of the court's decision in Kennedy v. Louisiana would have it ignore that embarrassing wrinkle by treating the military as a parallel universe that simply does not intersect civilian justice on the plane of constitutional principle. But a court searching for universal principles of justice in the name of the Eighth Amendment would be hard pressed to accept that view of the military/civilian distinction. Particularly when the court's division tracks the usual liberal/conservative divide, its credibility depends on both candor and correctness when it comes to the factual predicates of its rulings.
At this point, I think even those who support the original ruling recognize the need for the Court to reconsider its Kennedy decision, even if only to correct the record, and make explicit the actual basis for the Court's decision.
UPDATE: Why "correct the record" if the outcome of the case would be the same? I can think of several reasons. Among other things, the Supreme Court's decision is binding on lower courts, so it is important that its analysis is based upon a correct statement of the law. Furthermore, if (as many suspect) the purported existence of a "national consensus" on the death penalty for child rape had little to do with the Court's holding, the Court should say so, particularly now that the factual basis for the "national consensus" argument has been undermined. If the law of the land is that those punishments that a majority of the Supreme Court finds objectionable or disproportionate when imposed for certain crimes, then the Court should make that clear.
At Bench Memos, Ed Whelan has additional thoughts on Tribe's op-ed, particularly Tribe's . . . um . . . interesting suggestion that the Kennedy opinion could raise equal protection issues.
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Isn't there a question of fairness when it comes to reconsidering a decision to deny application of the death penalty? In other words, if the highest court in the land, in effect, "commutes" a death sentence and then reconsiders its commutation, that seems, to me, a bit cruel. Of course, we are dealing with someone for whom I am not inclined to have much sympathy.
I realize that courts don't "commute" sentences (it's my understanding that that is the prerogative of the executive branch). I also realize that my concern doesn't address the legal issue or the question about basing a decision on a supposed "national consensus." But what do people think about the fairness of reconsidering this decision?
As far as I am concerned, the 8th amendment doesn't set any limits on what crimes are death penalty eligible. At the time it was drafted, nearly every felony was DP eligible. The restriction was always on the modes of punishment. Degrading and sadistic punishments (especially executions through torture) are forbidden by the 8th amendment. Nothing more.
The modern notion that you have to murder someone to be hanged is entirely inconsistent with the original understanding of the 8th amendment and last time I checked, nobody had used Article V to change this.
Again, what happened to changing the constitution through Article V?
if the issue wont change the outcome then there is no reason for appeal. the supreme court grants 1 in a zillon cases 1 hearing-should waste its time rehearing a case for the second time over a technical error.
It's interesting to see their takes on whether reconsideration will be granted, and whether it will have any effect. None I've read so far have considered arguments on both side of the picture, sadly.
Question - can anybody get what the voting breakdown was on passing this? Obviously, it was at least half, so the argument could be made that at least half of the elected representatives of all the states favor DP for child rape. On the other hand, if I understand correctly, this provision was buried inside a much larger, general defense bill, so its existence may have been overlooked, or outweighed by other considerations supporting passage of the bill.
Like corneille1640, I bring a bias against the death penalty to the debate. Yet your point is one that I can't refute. I find myself in the position of someone whose opposition to the death penalty stems largely from his religious background: No doubt in my mind that a Catholic needs to be at least highly skeptical about the legitimacy of capital punishment. But intellectual honesty prevents me from concluding that CP is unconstitutional. The opposite, in fact, from my reading of the Constitution.
But what if--hypothetically--the Court hears this case agsin, and this time Kennedy says that the new standards against CP for child rape is "obvious"? Does that take care of it?
Obviosuly.
Checking wikipedia (which is a crappy source, I know) I see we were executing people in the 1960s for rape, robbery, assault, kidnapping. If you go back to the 1940s, we were still executing people for burglary. Coker v Georgia turned a willfully blind eye towards centuries of tradition and jurisprudence pointing the other direction. "Evolving standards of decency" is the biggest legal fabrication since someone decided that "substantive due process" wasn't an oxymoron.
I don't believe that is an entirely accurate assertion. The provision was added as part of amendments to Art. 120, UCMJ, 10 USC 920, included in the overall Bill. There was a lot of focus upon and discussion of those amendments (at least within DoD and the Services' JAG Corps). Extending CP to an offense not resulting in the victim's death was hotly debated, and had been the subject of discussion for several years prior to 2006. The provision was not something either just slipped in or not vigorously debated for quite a while before proposed or enacted.
However, whether members of Congress (or their staffs) read the bill or were aware that CP for child rape was being authorized, are different questions.
"Wisdom too often never comes, and so one ought not to reject it merely because it comes late."
Henslee v. Union Planters Bank and Trust Co., 335 U.S. 595, 600 (1949).
Make explicit the actual basis for the decision? Do you really want to read a line written by the Court that says: "We just flat out don't want the death penalty for rape of children even though nothing in the Constitution prohibits it, so we're telling you that you can't do it."
Do you think making explicit their reasoning will help here? Or are you assuming there's some actual legal basis for the decision? I'll give you a hint: there isn't.
Having rested their rationale on a newly discovered to be false premise, Kennedy and the other four are in a bit of a bind. They had thought they had found something great (evolving standards), so much so that they didn't feel the need to justify their ruling on some other basis. And having done that, they can't now come out and say 'never mind' to the community standards rationale and go with something else (who knows what that would be?) as the basis for their decision. They're stuck with the argument they put forth, so they're going to have to dismiss and discount the UCMJ as somehow not being relevant to their decision.
The easiest thing for them to do is just to ignore this new information, but keep in mind the one thing they fear is the public rising up and refusing to go along with their rulings (like the Pope, they don't have any divisions); once the public ignores a decision (by, for example, executing a child rapist), their curtain is gone and they're exposed as nothing more than 9 people with a serious power complex. Because of this, they'll likely be leery of just refusing to address this issue, especially given the number and caliber of those arguing that they need to address it. They need, for their own sakes, to make us (or, at least the opinion makers) thinking the Justices aren't just making it up as they go along.
It would be ironic if evolving standards in self defense law combined with evolving standards of capital punishment law to produce a system with a high rate of summary executions. Of course, this would hardly be the first time that some government elite has forbidden a popular tradition and thus relinquished control over the subsequent black market.
One reason that this might not be just an insignificant technical error is that the mistake undermines the argument that the death penalty for child rape is "unusual." To be unconstitutional, it has to be BOTH cruel and unusual.
As others have pointed out, that would be something like this:
"Because we f---ing OWN your worthless peasants a--, so shut your d-- mouth and do what we say! That's why!!"
rofl rofl rofl...
I completely agree with you, and anyone with basic reading comprehension would as well. Note that the SCOTUS hasn't held that position in at least decades, now.
No, those two statements to not conflict - see my point above about "actual basis".
Something like that.
And by disagree I mean they are Obviously Wrong To All. Any who says the SCOTUS isn't wrong has an agenda. Not like me, I have a direct line to Objective and Virtuous Truth.
Good thing states can kill people in prison whenever they want. State governments blatantly breaking the law, that'll show the SCOTUS! And kill some criminals! It's win-win!
im sure an argument could be made to change the outcome of the decision based on this correction.
the reality however is that the justices who voted for the way they did will probably not be swayed. it is only 1 jurisdiction-and it takes the juristictions which had the death penalty for child rape from 6 to 7 out of the 50 states, dc, and the regular (non military federal jurisdiction). It is also a jurisdiction which is highly atypical.
im not sure i disagree with the decision-or agree with it-im neutral. but you have to be a realist about how the judges decided. 8th amendment is a pretty nebulous thing-not a lot of solid case law defining what is or is not cruel and unusual. (probably becuase its something not very measurable).
Very good points. I think maybe you overstated the case in your first post by using the word "crock" and referring to the error as merely "technical," but I see your point now. I would say it is not "unusual," and not in all cases "cruel," but that is a subjective judgment.
Why can't they? A Court that can go from Wickard to Lopez to Raich surely isn't much troubled by "the hobgoblin of little minds."
This inconsistency is proof the Court is our Tyrannical Overlord, ruling us all with 18 Iron Fists.
Funny, the relevant portions of the constitution haven't.
I'm guessing they wouldn't throw out unusually lenient punishment, so it could evolve towards coddling.
The Amendment reads "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."
I think this can be read (by the literal-minded) two ways. If I wrote, "I don't eat peas and carrots", wouldn't most people interpret that to mean I don't eat either peas or carrots?
Even if you do interpret "cruel and unusual punishments" as "punishments that are cruel and unusual" not "cruel punishments and unusual punishments", it still strikes me that any punishment that is unexpectedly harsh is ipso facto cruel. (I don't think the penalty Kennedy was supposed to get was cruel because anyone would expect a very, very harsh penalty for child-rape: he couldn't have been hoping to be let off with a fine.)
And cruel and unusual punishments is not a term of art! We need to analyze it carefully to show just how wrong the Supreme Court is!
It's possible, but the comparison is weak. Child rape by a civilian is hardly different from child rape by a member of the military. The activity has little to do with how a military functions or the prosecution of war. If a member of the military were to be prosecuted for child rape, that is simply a jurisdictional accident of where the crime occured and/or by whom.
OTOH, one can easily distinguish enemy combatants captured in battle from ordinary civilian criminals arrested for violating the criminal code.
Make that "18 Iron Fists of Whimsy" and you might have a point.
Article V sets a high bar for altering the body of law represented by the Constitution. The change in Coker v Georgia was not prompted by any such change. "Evolving standards of decency" was a straight and obvious ipse dixit to depart from centuries of contrary jurisprudence and history, not to mention barely paying lip service to the text of the Constitution.
How would that work? Art. 134, UCMJ, 10 USC 934, assimilates non-capital crimes and offenses from the surrounding civilian jurisdiction. Also, it provides for crimes that are offenses against good order and discipline (my personal favorate being "Abuse of a Public Animal" -- there's an old case involving a chicken, and "No", you don't really want to know what was done to the chicken).
Plausible and perhaps even compelling arguments could be made that the Kennedy v. Lousiania decision does not bar the death penalty provision in this UCMJ offense given the special nature of the armed forces. The consititutionality of this provision merits separate consideration, and it certainly is not presently before the Court.
Are you familiar with the term, "under color of official right"? Or the California holding that the public entity employers of law enforcement officers are vicariously liable for rapes committed by their officers who secure their victims under color of official authority?
Analogies to those apply here. It is appropriate for the UCMJ to apply greater penalties than normally applicable to civilians for servicemen convicted of use of their service-issued weapons to deter or eliminate resistance in the course of raping children. Whether such greater penalities should include death is an appropriate issue, but whether greater penalties should be applied to servicemen than civilians for some offenses was held constitytional long ago.
As you undoubtedly know (since we are both regulars here), I am not only a death penalty proponent, I am a death penalty prosecutor. I may even be the only person posting here who has witnessed an actual execution (I have witnessed 4, including once when I actually stood next to the executioner).
In any event, I respect your opposition to capital punishment just as I respect any other abolitionist in that regard. I respect any legislature that chooses to amend its criminal code to abolish the death penalty. What I do not respect is the Supreme Court making a policy decision as a matter of Constitutional law. Policy is for the Legislative and Executive Branches--not Justice Kennedy's concept of "evolving standards of decency."
My uncle was a career prosecutor who worked exclusively on multiple-homicide appeals. (After his clerkship, he spent his career in Cook County, so there was plenty to keep him busy. Unfortunatley.)
He opposed capital punishment on pragmatic grounds. And I'm sure his devout Catholicism played a role in his thinking. But his decision was that he would see that the law was enforced, and he was comfortable with the fact that he was not the Law Giver. Knowing what the possible penalty was, juries had found the convicts guilty. As he saw it, it was not up to him, or to any judges, to undo that law and that decision purely because they had other views of justice.
I would not have been able to do what he did. But that's my shortcoming, not his.
Comments are now closed on that Lindgren post. Because "Irked by Tribe" cross-posted here (see 2 comments, above), I figure this is as good a place as any to put a link to the video of Tribe "outing" Chief Justice John Roberts as merely an "A-" student (apparently the same grade Tribe gave Obama, who he says was his best student ever).
Anyway, I've done a 7-minute snippet of the speech Tribe gave on Constitution Day, 2005, part of which was devoted to attacks on Roberts. Tribe expressed some concerns about "this fellow," who Tribe went out of his way to say got only an "A-" in his class. Basically accusing Roberts of having put on an act at his confirmation hearing, Tribe complained that the "Roberts persona" supplied "few inferences" on his fitness to be Chief Justice -- "nothing there," "a blank," etc. Tribe suggested the burden of proof regarding whether Roberts should be confirmed should lie on those favoring confirmation. At the very end of this snippet, Tribe suggested the burden should be especially heavy because the particular President who had nominated Roberts also appointed "Brownie" to head FEMA, and wasn't really elected President, anyway (apparently as of 2005 Tribe hadn't gotten over losing Bush v. Gore). Classy guy.
Youtube here: http://www.youtube.com/watch?v=ZVt2dH7d69k.
If anyone's interested in the full video, I'd be happy to upload it somewhere for all to enjoy, but you'd have to find a website able to handle a 567MB video file.
--Harvard Hater" (name sez it all!)
People seem to think that “cruel and unusual” is a term of art, but it actually means no more than the sum of its component three words.
2. Cruelty is in the eye of the beholder, or in the body and mind of the one receiving the punishment, and it can reasonably be understood to be measured in proportion to the crime. In particular, a reasonable person might find the death penalty to be cruel punishment for rape, but not cruel punishment for murder.
3. Unusual means “un” + “usual.” Therefore, if a punishment is never or rarely imposed, it becomes unusual, if it was not already.
Why are so many people here having so much problem with “cruel and unusual”? Inherent in the meanings of “cruel” and “unusual” are contemporary standards. This inherency is built into the language in which the Bill of Rights was written. Even an “originalist“ ought to recognize this, but people continue to blather in these comments as if the fact that horses were not unusual sources of vehicle propulsion in 1789 means that horse-powered vehicles are not unusual on today's urban expressways. Likewise, in 1789, it would not have been cruel to deny antibiotics to a prisoner suffering from pneumonia, because antibiotics hadn't been discovered yet, but today, it would be unthinkably cruel to deny antibiotics to a prisoner suffering from pneumonia.
Meanings evolve. Originalism is a crock and always has been, especially but not only apropos of the 8th Amendment.
(It may seem like a bizarre result that the constitution forbids a $10,000 fine for jaywalking, but not ten years in prison - but unless I missed some relevant text elsewhere, that's what the 8th Amendment says.)