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

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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.”)

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.

Charlie Rose talks with Supreme Court Justice Antonin Scalia

Charlie Rose aired an interview with United States Supreme Court Justice Antonin Scalia last night. The video has not been published yet, but will no doubt be put up soon at this link – Charlie Rose, A Conversation with Justice Antonin Scalia.

My favorite quote – “It’s kind of a dead end… [referring to the job of Supreme Court Justice] …I mean what do you do for an encore?”

Scalia was previously interviewed by Leslie Stahl on 60 Minutes and recently published an excellent book with Bryan Garner, Making Your Case: The Art of Persuading Judges

The Inspirational Story of New Supreme Court Clerk Isaac Lidsky

The story of new Supreme Court Clerk Isaac Lidsky is inspiring – also disconcerting, I might add, for his foray as a child actor – Weasel, aka Screech 2 on the inexplicably long-lived Saved by the Bell: The New Class (aren’t these people supposed to end up in rehab?) – but unrelentingly inspiring.

Isaac Lidsky has been an associate at Jones Day’s Washington, D.C. office for only three months, so he was unsure where to find the Erwin Griswold conference room, where our interview would take place. He asked for my elbow to guide him.

I had never been to the conference room either. But I can see. Isaac Lidsky is blind. As I followed signs, and Jones Day workers showed me the way with Lidsky at my side, the magnitude of what lies ahead for Lidsky became real.

Starting July 14, Lidsky will be making his way through the marble halls of the Supreme Court as a law clerk — the same maze-like hallways that famously confound new, sighted justices for the first months of their tenure.

A small number of clerks with disabilities have served the Court, but, before Lidsky, no blind person has taken on the reading-intensive job that entails digesting hundreds of petitions and writing memos and rough drafts of decisions.

I’m trying to reconcile my shriveled, cynical heart with the after-school-specialness of it all – the story is simply…. ugh… heartwarming.

Justice Scalia on 60 Minutes

Leslie Stahl at 60 Minutes airs her interview with Supreme Court Justice Antonin Scalia in Justice Scalia On The Record – see video below.

CBS Video: Scalia, Part 1

CBS Video: Scalia, Part 2

“Anyway, that’s my view,” Scalia says. “And it happens to be correct.” Classic Nino.

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