Louisiana wants to execute Patrick Kennedy for the violent rape of his 8-year-old daughter. Though I may be a card-carrying liberal who has long been critical of the death penalty, I cannot deny my lack of moral outrage or concern over a state’s desire to dispose of a 300lb man who brutally raped his own child. I cannot deny harboring the sentiment that, if there ever was such a time for the death penalty, then surely this is it. Certainly, I never could have sat on Kennedy’s jury, because I could never see it as my place to decide who lived and who died. But if someone else wants to kill Patrick Kennedy, I am admittedly equivocal. As terrible as this sounds, murder sometimes happens. It happens accidentally. It happens in self defense. It often happens where the killer never truly intended such a tragic outcome. Rape, however, does not merely happen. Rape is not an accident. Rape is not self defense. Rape is never the tragic, unforeseen result of some fight or argument gone bad. A grown man who rapes his own daughter does so with complete knowledge of what he is doing. Perhaps this is why the execution of Patrick Kennedy doesn’t bother me nearly as much as the execution of certain convicted murders does. My sentiments aside, his case will reach the Court for oral arguments on Wednesday.
Many opponents of the death penalty – and Kennedy’s lawyers - suggest that the “evolving standards of decency” argument clearly militates in their favor: only five states allow the death penalty for the crime of child rape. The limited number of states where child rapists can be executed is not dispositive, but owes, rather, to post-Coker confusion. In Coker, the court ruled that the death penalty was a disproportionately severe – and hence, unconstitutional – punishment for a convicted felon who raped an adult woman. Many states assumed that Coker foreclosed the prospect of passing legislation under which rapists would be death eligible. Coker, however, dealt with the rape of an adult woman. Indeed, Justice White’s decision repeatedly returns to the phrase “rape of an adult woman.” Coker did not pose the question of whether or not the death penalty was an appropriate punishment for rape of an 8-year old child. As such, several states, Louisiana included, have concluded that there is room, even in this post-Coker world, for a statute that allows for execution of child rapists. If I recall correctly, no states had a child-rapist death penalty statute in 1990. Now, five states have such a law. Missouri has filed an amicus brief asking the court not to foreclose a national debate on the issue of capital punishment for child rapists. This does not go so far as to suggest that our evolving standards of decency favor executing child rapists, but rather, that neither side can claim that argument as a trump.
Kennedy’s case cannot be decided based on the Coker precedent. The facts of the situation are easily distinguishable from the aforementioned. The case will, indeed, include a lengthy discussion of our evolving standards of decency ala Roper v. Simmons and Atkins v. Virginia. There will be some wrangling over whether or not America should consider the jurisprudence of other nations in our discussions of the constitutionality of our death penalty. Though doubtful, the court may consider how such laws make it more likely that child rapists will – sensing they have nothing left to lose – murder their victims. Possibly, the court will strike down the law as vague or overbroad, in that it allows the death penalty for anyone who rapes a child under 13....whereas anyone who murders a child is not instantly death eligible without proceeding through a lengthy balancing of aggravating factors and mitigating circumstances. Our murder/death penalty jurisprudence is well developed. Our child rape/death penalty jurisprudence is not. In other words, the law may lack appropriate safeguards to ensure that it is narrowly applied and only in appropriate circumstances. Because the Louisiana law does not include such checks against its application, the Court may – in a 5-4 decision – rule it unconstitutional.
12 comments:
Don't even get me started about Coker and Atkins.
This method of interpreting the 18th amendment means that ANY TIME a majority - or at least a substantial majority - of states is against a type of punishment, it becomes cruel and unusual - and we can never go back, because any state that switches allegiance will have its statute struck down by the court.
And it's even worse under Atkins, because it doesn't even have to be a majority. If a plurality of 18 states stops executing the mentally disabled, it's cruel and unusual and thus constitutionally banned.
You might say this is good- that punishments should only become weaker and more limited over time, as we evolve into a more "decent" society. But decency doesn't work like that.
Decency isn't just about how we treat criminals. Imagine if we stopped punishing crime altogether. Would that be "decent"? I doubt it. First, because we would be fail ing to give criminals the punishment they deserve, and second because we would be causing harm to the noncriminals in society. We would be acting with clemency, but not with decency.
Decency, in other words, is a multi-party issue. And, while it might sometimes make us more lenient towards criminals, it can also evolve in a way that makes us harsher towards them.
The Coker Court, however, would have us only move towards clemency for criminals, without considering how decent we are to everyone else.
Let's look at the issue in Coker. Maybe you agree that it's indecent to execute people for raping adult women. I don't. I believe it's indecent to let rapists back on the street after a couple of years in prison. I believe it's indecent that we give greater punishment to drug dealers than to people who shatter a woman's sense of security forever. More to the point, I believe that it's indecent that the state fails to a) PUNISH what I feel is the most odious crime, b) EXPRESS its utter contempt for rapists, and c) DETER an enormous criminal problem by occasionally using its most coercive punishment.
But I don't get a say anymore. And even if I could convince state after state, under Coker jurisprudence I will never get a say.
So don't get me started on Coker.
So, basically, we agree.
Our "evolving standards of decency" runs both ways. If we can move away from the death penalty, we can, conversely, move back toward it for certain extremely heinous crimes. I agree. Ironically enough, I - Jonathan Pollard - agree with Justice Scalia re that 18 state consensus nonsense.
Many states interpreted Coker as proscribing the death penalty in any rape case. Only in the mid 1990's did states begin to realize that such an interpretation of Coker may have been over-broad. That Coker may have only struck down capital punishment in cases were the victim was an adult. That statutes providing for the execution of child rapists may still be constitutional. Coker may have prevented some states from passing such laws because they believed them to be unconstitutional. So, does the fact that only 5 states have the death penalty for child rapists mean that such punishment is utterly disfavored by the union? Not really. Because some states believed that Coker foreclosed that possibility. As the Missouri amicus brief suggests, we should let the debate play out. We should see how many states would pass such laws if they were not foreclosed from doing so by Coker.
If the law is struck down, it will not - and should not - be struck down under Coker, which relates to the rape of an adult, not a child. If struck down, it will be struck down for vagueness.
There are many other considerations at play here, in terms of when the death penalty should be applied in child rape cases. Should there be requirements for physical evidence, DNA, etc? Should we weigh the problems that sometimes accompany testimony by young children (inconsistency, susceptibility to suggestion from authorities, etc).
See:
"In a videotaped interview with a psychologist shortly after the rape, she said two boys came to her house, dragged her over to the side yard, and as she put it, one of them put his "thing" in her "pee pee.'"
Over the course of two days of interviews, she was clearly reluctant to talk about the rape, at one point bursting out that she knew police wanted her to accuse her stepfather.
"I will tell the same story," she says, her voice rising. "They just want me to change it." The psychologist asks the child, "Who wants you to change it?" The reply: "The policemen. They want me to say my dad did it, and I don't want to change it.'" - NPR
Jesus, that transcript gives me pause. As much as I'm sympathetic with Vern's view on the substance of rape punishment (Lord knows I'm retributive when it comes to certain crimes), I'm pretty concerned about the justice system's ability to get the right answer in, say, murder death penalty cases. Adding in the difficulties of proof in rape cases makes it even worse, and causes me to doubt whether it's at all prudent even to attempt to apply the death penalty in those cases. On whether it's Constitutional, I think I go with Scalia on this one (although I haven't re-read the case): standards can evolve all they want, as determined by the legislatures. The remedy for opponents of the death penalty lies there, not in the Constitution.
Allow me to play the lawless living constitutionalist, as I do these days. Eighth Amendment analysis is tricky. The Eighth Amendment evidently means something, and imposes some constraints on punishment, in some way. You might say it only prohibits extrajudicial punishments. These are “unusual.” You might say that it prohibits those, and punishments that were illegal at the time of the Constitution’s ratification. I suppose you would want to prohibit only those unanimously prohibited by ratifying states, and only count states that ratified the Constitution up until it came into effect, right?
But why take this cramped, positivist view of the Eighth Amendment? Just out of fear of federal power? The absence of federal power over punishments isn't “more freedom”—it’s state power, backed up by complicit federal power. Is the argument that the Eighth Amendment shouldn’t apply to the states, or that its application to the states was wrong, but is now essentially grandfathered in, so we should take a restrictive approach to its interpretation so as to mitigate this constitutional harm? If so, the argument should be made more explicitly.
Is this an issue of State sovereignty against federal sovereignty? That criminal law is uniquely within the sovereign authority of states (see AEDPA here)? If so, I would like to see this argument made more directly. Is this constitutionally compelled?
I believe that there is, in the Constitution, at least an expression of skepticism regarding the beneficence of penal statutes—enacted by democratically-elected legislatures—and that this question cannot be answered by appeals to democratic legitimacy. Where democratically-enacted legislation deeply impinges upon individuals, where the state’s extreme coercive force is directly and uniquely present, is it truly abhorrent to the Constitution to raise the costs of such legislation such that states are restricted from its exercise in the absence of the Article V supermajority that could reverse Atkins, Coker etc.? But my belief derives from a constitutional theory in which there are higher values than majority voting—that democracy is essentially an instrumental means to these higher values.
Atkins’ 18-state consensus is too easy to attack. I don’t think it advances our understanding to attack it; it’s a beautiful straw man, a perfect target for Scalia’s rhetorical assaults (like citations to foreign law), but is Atkins wrongly-decided? Is execution of the mentally retarded in fact permitted by the Eighth Amendment? Saying that 18 states is a consensus, and that answers the Eighth Amendment question simpliciter, is of course wrong. But that’s not what the court said then or since then (as I remember it, it wasn’t framed as 18/50, it was “18/states with the death penalty” because states without the death penalty at all were impliedly counted toward the “18 state consensus”). The analysis is complicated, involves balancing, and inevitably non-textualist. Is it laughable because of this? I don’t think so; issues of crime and punishment are really hard, and are simply not amenable to neat, carefully parsed legal analysis.
My favorite passage from Issac's response:
I believe that there is, in the Constitution, at least an expression of skepticism regarding the beneficence of penal statutes—enacted by democratically-elected legislatures—and that this question cannot be answered by appeals to democratic legitimacy. Where democratically-enacted legislation deeply impinges upon individuals, where the state’s extreme coercive force is directly and uniquely present, is it truly abhorrent to the Constitution to raise the costs of such legislation such that states are restricted from its exercise in the absence of the Article V supermajority that could reverse Atkins, Coker etc.? But my belief derives from a constitutional theory in which there are higher values than majority voting—that democracy is essentially an instrumental means to these higher values.
There are some very important questions here about federal authority. And I take Isaac's point that, if the argument is one of state's rights, then that argument should be more explicitly made.
The real point that Vern and I are making is fairly straightforward: First, Coker has been broadly construed as prohibiting the death penalty in rape cases. This may not be so. Second, our societal standards can move in both directions, either for or against the death penalty for murder, rape, etc.
There is an entirely different argument regarding whether or not such situations as the Kennedy case demand us to more rigorously scrutinize whether or not this should be the providence of state legislatures and 'democracy', or, whether it does demand some type of intervention by the Supreme Court. I, again, agree with Isaac in the sense that the exercise of power will always be present here in the form of the federal government dictating what constitutes an appropriate use of the death penalty either through sanctioning or overturning such statutes.
I also disagree with the idea that a rapist rapes with complete knowledge of what he is doing. Not as an absolute matter, but compared to a murderer? I think the mental states are in fact often similar. Neither the rapist nor the murder often has a clear idea of what they are doing; they are both similarly unable to control certain base, sociopathic impulses at the moment of the crime. To some extent the idea that rape is at least potentially worse than murder derives from a valorization of murder in our culture as a kind of masculine, self-reliant thing to do in certain circumstances--murder being broadly defined here so as to include felony murder, homicide, manslaughter, killing in self defense, the various "degrees" etc., while rape is restrictively defined to mean "violent rape by a stranger" and "rape of a child by a relative" and exclude, for instance, statutory rape (e.g., the Genarlow Wilson case).
Please don't misinterpret this comment as in any way minimizing the gravity of the crime of rape. It's just that murder (actual murder, not killing in general, including self-defense and so forth) is really a very bad thing--and if it is really, truly murder, I believe it is certainly no more excusable than rape.
In terms of impulses and actions, I still have difficulty conceiving of a lesser offense charge for rapists, something akin to manslaughter.
Not necessarily approaching the issue from some ultra-masculine paradigm that seeks to justify murder.. but the reason why murder occasionally seem less odious is because it sometimes occurs in self defense, accidentally, or as the product of a split second lapse in judgment. Had Kennedy shot and killed a man in a bar following an argument, I would certainly consider the possibility that this was an accident or momentary lapse in judgment. The actual killing - the mechanism of such a murder, and indeed, it would be murder - is much swifter. The actual fashion in which many murders unfold is so swift as to foreclose second thoughts, etc. The actual act of rape is not akin to the accidental firing of a gun, a fight gone bad, etc. It involves restraining the victim, taking off his or her clothes, and raping him or her - in the instant case, an 8 year old girl - until the rapist has climaxed and the victim is left battered and bloody.
What is akin to what. The rape perpetrated by Kennedy is analogous to the foulest of murders. But the analogy does not go both ways. There is no type of rape akin to manslaughter. There is no type of rape that can be viewed as accidental or the product of a fight gone bad.
This is why we are often more willing to afford some murderers leniancy. Because there is a full spectrum. Let us say that spectrum runs from 1 to 10, where one is self defense, 4 or 5 is a fight gone bad, and ten is purely evil premeditated murder. I do not believe that rape has a comparable scale. The leniency that we are willing to afford murderers guilty of murders rating 1 through 5 does not exist for rapists because there are no self defense rapes, no accidental rapes, no rapes resulting from the fight gone bad. The bottom half of that rating scale, the end where we may be inclined to be lenient is nonexistent. Say what we will about mental state, but rape falls on the high end of that scale, foreclosing lesser charges and only allowing for us to brand that action foul, fouler, and foulest.
"The real point that Vern and I are making is fairly straightforward: First, Coker has been broadly construed as prohibiting the death penalty in rape cases. This may not be so. Second, our societal standards can move in both directions, either for or against the death penalty for murder, rape, etc."
1. If the point is just that Coker only prohibits execution for rape of an adult woman, then yeah, that's what it says. No argument there. But that doesn't mean that by negative implication execution for rape of a child is OK. It means it's an open question in terms of Supreme Court holdings. I take no exception to this point.
2. Societal standards can indeed move in both directions. To the extent that I want to defend Eighth Amendment decisions that rely on state consensus (which isn't really all THAT much) I think that the "one way ratchet" of current 8th Amendment consensus analysis isn't ridiculous. The Eighth Amendment is a textual thumb on the side of the constitutional scale that supports prohibiting punishments. The idea that it has to go both ways to be analytically coherent I think goes against the proper conception of this issue, in which the courts are not merely reactive, but rather are engaged in a conversation of sorts with legislatures and the public in general regarding crime and punishment. When it becomes relatively accepted that a punishment is unusual/problematic--that there is (at least) substantial support for the idea that this type of punishment is cruel and unusual--the courts can take the precautionary step of raising the costs of imposing this punishment, either by declaring it unconstitutional or by imposing substantial restrictions on its use. Legislatures and the public can respond, like they did after Furman v. Georgia.
Is this wrong? I don't think so; I think it's pretty consistent with a proper, individual-liberty-regarding interpretation of the Constitution. What's so constitutionally wrong with a precautionary approach that takes the gravity of imposition of extreme punishments particularly seriously?
Is it a states' rights thing, an anti-judicial activism thing?
John--regarding rape vs. murder--
So, what of the Genarlow Wilson case? The issue I was raising is with the idea that everything that ends with one person killing another is "murder" (whereas the legal definition of murder is different; when you kill someone accidentally, or during a fight, or in self-defense, it's not the same crime as premeditated, sociopathic murder).
Wouldn't you agree that the crime Kennedy committed is meaningfully different than consensual sex between a 17 and 18 year old (or, again, the Genarlow Wilson situation) which still can be legally defined as rape? Isn't that situation worthy of significantly lesser condemnation than Kennedy's crime?
I mean, this is something of a semantic argument; you may say that statutory rape is not rape at all--but killing in self-defense or by accident is similarly not murder at all, even though in both cases sex or death occur.
(I'm not saying that statutory rape should be legalized here, or isn't a problem. There are certainly very sound reasons to define legally an age of consent.)
The easy one first:
1) Rape v. murder: I was basically disregarding statutory rape.
2) We're on the same page re Coker. I certainly did not mean to suggest that the Coker decision makes the execution of child rapists legal. Simply that Coker does not foreclose that possibility. Kennedy's advocates mis-rely on Coker as rendering the LA statute invalid. It's an open question.
3)I take issue with the one-way evolving standards of decency argument because it is - in this instance - somewhat disingenuous. What is the barometer for our standards of decency? If it is a quick glance at current state laws, then we see that only 5 states provide for the execution of child rapists. BUT, if this is the barometer, then it is not entirely accurate. Other states may have passed such laws, but they believed - perhaps wrongly - that Coker foreclosed this possibility. This is why Missouri's AG submitted an amicus brief saying, "Hey, wait a minute. Maybe our standards aren't really clear because Coker's holding isn't really clear." So it's just disingenuous to argue that current state law accurately reflects our evolving standards of decency. In part, because of the Coker mess. But also because it's always a group of states that abhore a particular punishment vs. that one rogue state that just passed a particular law. We then point to the group, call it a consensus, and shoot down the rogue. Another state passes a law that conflicts with the group, and its law is - likewise - shot down. We can't get a clear picture of our national standards of decency re the death penalty because of this framework.
I also don't know exactly where we get our standards? From the people? From the international community (1/2 of which still treats women and children as property or near-property). Or simply from the courts? I can't really answer this. It's not an easy question. Yes, I believe there has to be some source of moral authority. I'm not screaming about judicial activism here. I'm moreso taking issue with how the evolving standards of decency framework is used. To me, it appears terribly flawed.
In keeping with your comments, I actually believe the court strikes down the LA statute in question because it is too vague and, indeed, does not come with those substantial restrictions on its use. I am completely for the court ensuring that any punishment of such severity is accompanied by certain safeguards. If the law is struck down, it should be struck down for this specific reason, not on the basis of some shoddy evolving standards of decency argument that is butressed by possble misinterpretations of Coker and a framework that makes it very difficult for a state to go against the group (though not by any means the clear majority) without being trumped by "the consensus".
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