Tuesday, June 24, 2008

An object lesson in activism

I have been down in Chicago, attending a conference on empirical legal research at Northwestern University Law School. For me, it's a review of statistical concepts that I have understood conceptually, but, on which, have been really weak on the math. I'm learning how to use software that does the math for me, although I'll still need to work with a statistician. More to come.

While I was gone the Supreme Court decided Louisiana v. Kennedy, holding that the death penalty is unconstitutional for the rape of a child. As I have blogged before, I categorically oppose the death penalty on what are, essentially, religious grounds. So, were I a legislator, I would not vote for a law providing for the death penalty for child rapists.

But finding such a law to be unconstitutional is another matter. Death for the rape of a child would almost certainly not have been regarded as cruel and unusual at the time of its adoption, but Justice Kennedy argues, we must discern evolving standards of decency in applying it today.

Fair enough, but what does that mean? One possibility would be to limit application of the 8th amendment to punishments that are clearly contrary to some observable national consensus. Imagine a renegade red state that imposes death for sodomy or a blue state that imposes it for exceeding your allocated carbon usage. On this view, the Eighth Amendment wouldn't prohibit much, but maybe that's implicit in its nature - it prohibits only things that are cruel and unusual. By definition, those punishments ought to be rare.

Another view - and this seems to be the one adopted by the majority - is to say that the Eighth permits the Court to prohibit punishments that strike it as overly punitive.

The majority does argue that death for child rapists violates a national consensus, relying upon the facts that only five states have enacted such a penalty and that the defendant here is the first such offender that anyone has tried to execute. But, it seems to me, there is a difference between noting that a particular policy choice is made by few states and, as would seem to be the proper question here, concluding that this choice would shock the conscience of those who have not adopted it. As Jim Lindgren points out, there may well be majority public support for death for child rapists. That both Obama and McCain found it necessary to denounce the decision further suggests this to be the case.

Ultimately, the majority's position is that it doesn't matter anyway. The Court must, Justice Kennedy makes clear, bring its own judgment to bear.

And this brings us back to the whole business of "activist v. restraint" and the proper role of the the judiciary. How does the Court go about exercising this judgment? Where does it find the authority for whatever principle that judgment will rely upon? We know its not the original understanding of what the eighth amendment prohibits. It apparently need not be an actual national consensus that a particular penalty is cruel and unusual. On this view, the Eighth Amendment is a warrant for the Court to substitute its own relatively unfettered judgement for that of the legislature.

People like me regard this as problematic. While I support the idea of judicial review (not everybody does) and the Constitution certainly enacts restrictions on legislative majorities, there should be some discernable standard - found outside a judge's own sense of how the world should be - that governs the application of these restrictions. To say that a cruel and unusual punishment can be anything that a majority of the Court thinks goes too far is not really rooted in any external standard.


Anonymous said...

"So, were I a legislator, I would not vote for a law providing for the death penalty for child rapists."

Of course not, unless of course it's your own child or grandchild that was raped.

Rick Esenberg said...

I would want to kill them myself and might well do it if I were not restrained. That does not mean that my reaction ought to be what the law is.

Anonymous said...

What do we mean by "child rapist"? Wisconsin, for example, makes no distinction in terms of the penalty for sexual contact as opposed to sexual intercourse with children (under 13). I don't know what the Louisana statute stated, but did it allow for the death penalty for the circumstance where Gramps puts his hand on his granddaughter's chest for the purpose of sexual gratification? In Wisconsin that conduct would support a conviction for First Degree Sexual Assault of a Child, a Class B Felony, with a maximum penalty of 60 years incarceration.

What if the allegation comes years or decades later (but within the statutory time limt) and under suspious circumstances (nasty divorce, or whatever). What coorboration would be required beyond a mere conviction to put Gramps to death? Do you remember the epidemic of false and bizarre claims of child sexual abuse (child rape) in the mid 80's where day care workers were convicted on the basis of seemingly implausible claims? Many, but not all of those hysterical prosecutions were reversed. Death to day care workers?

Sure, many cases of child rape can be prosecuted on the basis of sound forensic evidence and valid confessions or credible other evidence (404 evidence, for example), but too many convictions for child rape have later been reversed (for many reasons) for anyone to feel comfortable with the generalized proposition that all child rapists should be executed. And the mere fact that legislatures would be required to pick and choose which cases should be death penalty cases supports the holding that imposition of the death penalty constitutes 'unusual' punishment.

Anonymous said...

Lew, you didn't even mention death to Catholic Priests for the alter boy sexual assaults.

Anonymous said...

Rick -

I thought that the law is the reaction of the people...

Scot1and said...

I'm curious, If Lousiana v. Kennedy is Judicial activism, because the death penalty was not "cruel" at the time the constitution was drafted Then isn't Heller also judicial activism? After all, semi-automatic hand guns were not "arms" at the time the constitution was drafted.

Anonymous said...

superID, cue the music, for that's the limitations of "originalism," whatever it's supposed to mean.

Rick Esenberg said...


Not even close. We didn't have radio and wiretaps in 1791 either, but no one doubts that they constitute speech and a seizure. Originalism does not preclude looking at something new and deciding whether it fits within a category set forth in the constitution.

This doesn't work so well with the death penalty because it is today what it was in 1791. Still, I think some originalists would say that a constitutional provision establishes a principle that might be applied differently today than it was back then. My argument is that this principle has to be something other than what judges think is good penal policy. It might well be a true national consensus that execution of child rapists shocks the conscience. But that doesn't seem to exist (and remember all uses of the death penalty shock my conscience in that I don't think we can kill those who have been confined and pose no further threat as much as they may seem to deserve it) and the Court doesn't even pretend that it is required.


As you know the Lousiana statute couldn't mandate that all child rapists be executed and that the notion that the jury must vote for death subject to the mechanisms established by Furman and later cases does not violate the 8th. Maybe you think it should, but that battle has been lost.

There may be an argument - and Kennedy hints at it but doesn't wrap it up - that longstanding and repeated refusal to execute child rapists reflects a consensus that laws still on the books are inconsistent with a modern consensus but I don't know that the record supports that and, in any event, the Court doesn't seem to think that it was necessary to so find.

As for Grandpa and his wayward hand, I think execution would run afoul of an actual national consensus and, in the unlikely event that it was ordered, would be susceptible to an as applied challenge.

Dad29 said...

I kinda like the 9th/10th Amendments' language and am not all overwhelmed by the 'incorporation' stuff--for precisely the reason that Rick mentions: SCOTUS will now be defining appropriate punishment according to their own lights, ad hoc.

Same general objection applies to the Boumiene decision--but there it's a Congress v. President v. Court tangle.

IOW, the Court seems to think that it became God now that 200 years passed since Marbury.

God may disagree, given Roe and Dred Scott...

Scot1and said...

In Croker v. Georgia, the Supreme Court held that the death penalty was excessive in rape cases. The Court's holding in Kennedy, refused to make an exception for Child rape.

In my opinion, the creation of a penalty enhancer for child rape, the ultimate penalty, would be "activism." After all, the creation of a child exception to Croker, would effectively make children a protected class. Even Wisconsin v. Mitchell didn't go that far.

Rick, I too am against the death penalty. But my reasons are secular:

The death penalty can hardly be called fiscally conservative as 1 execution costs 6 times more than life imprisonment. When Kansas looked at implementing capital punishment, it estimated that it would cost $50 million before its first execution. As a result it was ultimately rejected. Other states, have had to take law enforcement off the streets to pay for the costs. Thus, the death penalty is hardly a crime deterrent.

Second, the death penalty is the perfect punishment in an imperfect system. Already 128 innocent individuals have been freed from death row.

Finally, it is cruel and unusual. of all the countries that have the death penalty, only the United States takes the position that it is not cruel. The other countries just don't care.

But for the pro-capital punishment crowd, I'd recommend the book Dead Man Walking by Sister Prejean.