lukegilman.com : The Blawgraphy
Life of a Law Student, University of Houston Law Center

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Please note: I'm no longer updating this particular blog, but keep it around for archival purposes. Visit me at the current blog at www.lukegilman.com

Cross-posting thoughts on Kennedy v. Louisiana from the Children and the Law Blog

What follows is a post I put up earlier today on Children and the Law Blog: Further Thoughts on Kennedy v. Louisiana

Following colleagues’ posts, Why Death Penalty Won’t End Sexual Assault: A Social Work Perspective on Kennedy v Louisiana and Supreme Court Rejects Death Penalty for Child Rape, I’ll hazard a slightly different perspective.

As is too often the case, the analysis of the opinion in the media distorts what was actually decided or even what was at stake. Supreme Court opinions are often treated as being about (1) what the policy should be, rather than (2) who should set that policy. We shouldn’t come down on commentators too hard for conflating these issues, however, as even the Justices tend to get this confused from time to time. The fundamental disagreement in this 5-4 decision is that five Justices thought the case primarily about number (1) – categorically prohibiting death penalty in child rape cases – and the other four thought it primarily about number (2) – allowing state legislatures to set punishments within constitutional bounds.

Ever Evolving Standards of Decency

Much of the majority’s opinion is spent justifying its determination of the ‘evolving standards of decency’ by reference to “objective indicia of society’s standards, as expressed in legislative enactments and state practice with respect to executions.” We don’t have to look very far into our history books to know that our sense of decency has indeed evolved -

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Two Centuries’ Growth of American Law, 1701-1901 By Yale Law School

The logic, however, of a court striking down a law passed by a democratically elected legislature based on a perceived consensus of democratically elected legislatures, seems bafflingly circular. What more appropriate measure of society’s standards than the collective statements of its duly elected representatives? That the majority finds it necessary to usurp that position for the sake of uniformity displays a preference for setting rules rather than setting boundaries. But here I’m just poorly paraphrasing Justice Alito’s dissent, who is left surmising, as am I, at the true policy behind the court’s ruling (see II B for his best guess).

Whose best interests?

It is, of course, entirely possible for statutes to be both Constitutional and terrible laws that hurt the people it’s designed to protect and there is good reason to believe that imposing the death penalty in cases of child rape imposes costs as well as confers benefits on child victims. In no other area of the law are unintended consequences so prevalent or so devastating and in its affect on children. Here are a few unintended consequences that imposing the death penalty in child rape cases might have created -

  1. Incentive to kill ones victims – the death penalty’s power of deterrence, though hotly debated, is the most obvious benefit to the victim. The specter of death, we believe, if proportional, encourages criminals to limit the damage they cause. If a child rapist is subject to death for the rape, there is no further incentive not to kill his young victim in order to cover up evidence of the crime.
  2. Discouraging Reporting of Child Rape – children are most frequently abused sexually by family members. Child victims may choose not to report rape because they fear that the rapist will be put to death. The tremendous guilt felt by victims remains for me the most stunning and tragic aspect of childhood sexual assault and may be magnified when the death penalty is imposed.
  3. Discouraging Cooperation in Prosecution by Child Victim – the Sixth Amendment’s confrontation clause requires the defendant have the right to confront and cross-examine witnesses. This can exacerbate an already bad situation for child victims who must often relive the trauma of the event in full court and in front of their attacker. The delicate balance walked by courts in protecting constitutional rights of defendants and avoiding any further harm to the victim/witness is further stressed in capital trials.
  4. Denying Opportunity for Closure or Explanation – an unexpected argument, raised in my colleague’s post here is the common desire among victims for explanation, apology, or other mechanisms of closure that is potentially lost if the assailant is put to death.

For policy makers the balancing of consequences and benefits is an uneasy and inexact science, but a task more appropriately performs by state legislatures. Most, I suspect, would find the cost of imposing the death penalty outweighs its benefits or that it would be imposed in a manner that, like Texas’ Penal Code § 12.42(c)(3) was reserved for repeat or habitual offenders.

In my opinion, this will never, fortunately or unfortunately, be the biggest problem facing children in our nation. Far more children will lose their lives to disease, inadequate nutrition and health care and outright neglect. Others will soon be caught in the very same legal system that here debates the best method of their protection. However, we should use the Kennedy case as a reminder that legal issues involving children are seldom as clear-cut as they seem and only a diligent and holistic approach to children’s rights can truly reflect their best interests.


Landmark Cases in the Supreme Court’s Death Penalty Jurisprudence

  • Kennedy v. Louisiana, 554 U. S. ____ (2008) (holding that the Eighth Amendment bars states from imposing the death penalty for the rape of a child not resulting in death)
  • Roper v. Simmons, 543 U. S. 551 (2005) (execution of juveniles violates the Eighth Amendment because the offender has a diminished personal responsibility for the crime)
  • Atkins v. Virginia, 536 U. S. 304 (2002) (the execution of mentally retarded persons “cruel and unusual punishment” prohibited by the Eighth Amendment)
  • Enmund v. Florida, 458 U. S. 782 (1982) (capital sentence of a defendant who aided and abetted a robbery during which a murder was committed but did not himself kill, attempt to kill, or intend that a killing would take place violates Eighth Amendment)
  • Furman v. Georgia, 408 U. S. 238, 382 (1972) (held that the death penalty could not be administered in a capricious or discriminatory manner)
  • Coker v. Georgia, 433 U.S.584 (1977) (held death penalty disproportionate to the rape of an adult woman and did not result, or was not intended to result, in the victim’s death)
  • Trop v. Dulles, 356 U. S. 86, 101 (1958) (plurality opinion), (noting that the Amendment “draw[s] its meaning from the evolving standards of decency that mark the progress of a maturing society.”)
  • Weems v. United States, 217 U. S. 349, 367 (1910) (the Eighth Amendment’s protection against excessive or cruel and unusual punishments flows from the basic “precept of justice that punishment for [a] crime should be graduated and proportioned to [the] offense.”)

Judge Russell Austin, RIP

I just learned that another friend of the UHLC has passed away. Judge Russell Austin suffered a stroke over the weekend and passed away yesterday. Judge Austin received his undergraduate and law degrees from the University of Houston and taught courses at both the University of Houston Law Center and South Texas College of Law. I had the pleasure of meeting Judge Austin only once but left impressed by his generosity and willingness to give back to the legal community through teaching and mentoring. I’ll consider myself fortunate if I have even half the impact in my career as he did in his.

Learned Handmade Plates

Through Above the Law, I learned of Jose Klein’s Learned Handmade Plates, which are not only awesome but have perhaps the best product name I have ever heard. Each plate features one of Klein’s depictions of a U.S. Supreme Court Justice. They’re a little pricey for a law student budget but someday these plates will be mine.

Harris County Jail dot com

The Houston Chronicle’s Web site offers future inmates a look at Harris lockup (archive) noted a new website, harriscojail.com.

The site, which is not affiliated with Harris County or the Jail in any way, offers information and advice from those having had the pleasure of past experience in Harris County lock up. The site is part of a growing franchise run by Jail Media, whose owner, Katie Nielsen started the project by after analyzing subjects that had inadequate links when people searched on search engines. Jail media has other sites for Cook County (Chicago), Orange County (the other OC) and Utah County.

The interviews, for which, Jail Media apparently pays, are terrible, but the question section is useful and anyone can comment.

My own first impression of Harris County lock up is still firmly ingrained. When I was in high school and visiting for the summer I would make deliveries with Sal, the delivery guy for my grandfather’s wholesale rose business. He would point at it from the freeway overpass with the 3 and half fingers left on his right hand and say ‘bad place, bad place’.

George Carlin, Rest in #$%*ing Peace

George Carlin died today. A sign of a well-earned obituary, his life is still more interesting for its events than for its passing. From the New York Times

In 1970, Mr. Carlin discarded his suit, tie, and clean-cut image as well as the relatively conventional material that had catapulted him to the top. Mr. Carlin reinvented himself, emerging with a beard, long hair, jeans and a routine that, according to one critic, was steeped in “drugs and bawdy language.” There was an immediate backlash. The Frontier Hotel in Las Vegas terminated his three-year contract, and, months later, he was advised to leave town when an angry mob threatened him at the Lake Geneva Playboy Club. Afterward, he temporarily abandoned the nightclub circuit and began appearing at coffee houses, folk clubs and colleges where he found a younger, hipper audience that was more attuned to both his new image and his material.

Among the more controversial cuts was a routine euphemistically entitled “Shoot,” in which Mr. Carlin explored the etymology and common usage of the popular idiom for excrement. The bit was part of the comic’s longer routine “Seven Words You Can Never Say on Television,” which appeared on his third album “Class Clown,” also released in 1972. “There are some words you can say part of the time. Most of the time ‘ass’ is all right on television,” Mr. Carlin noted in his introduction to the then controversial monologue. “You can say, well, ‘You’ve made a perfect ass of yourself tonight.’ You can use ass in a religious sense, if you happen to be the redeemer riding into town on one — perfectly all right.”

The material seems innocuous by today’s standards, but it caused an uproar when broadcast on the New York radio station WBAI in the early ‘70s. The station was censured and fined by the FCC. And in 1978, their ruling was supported by the Supreme Court, which Time magazine reported, “upheld an FCC ban on ‘offensive material’ during hours when children are in the audience.” Mr. Carlin refused to drop the bit and was arrested several times after reciting it on stage.

The Supreme Court case was FCC v. Pacifica Foundation, 438 U.S. 726 (1978)

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