The StandDown Texas Project

Linda Greenhouse on Judges, Judging, and Learning

"When Judges Don’t Know Everything," is the title of Linda Greenhouse's New York Times OpEd.  The former Times Supreme Court reporter has continued to write at the Times' Opinionator blog, and is now contributing OpEd columnist.  Here's the beginning:

A name familiar from a 2008 Supreme Court death penalty case was back in the news the other day. A federal district judge in New Orleans granted a new trial to Patrick Kennedy, convicted in 2003 of brutally raping an 8-year-old girl. He has been serving a life sentence in a Louisiana prison, spared the death penalty by a Supreme Court ruling that capital punishment for the rape of a child, unaccompanied by murder, violates the Eighth Amendment’s prohibition of cruel and unusual punishment.

Justice Anthony M. Kennedy’s majority opinion placed the emphasis on “unusual.” Only five states in addition to Louisiana made the rape of a child a capital offense, he noted, adding that when Congress last revisited the federal death penalty, in the mid-1990s, it failed to add child rape to the list of federal capital crimes. Capital punishment for the rape of a child was contrary to society’s “evolving standards of decency,” the majority concluded.

It was a high-profile case that divided the justices 5 to 4. But the ink was barely dry on the decision, Kennedy v. Louisiana, when it emerged that the court’s factual premise for taking the defendant off death row was, to put it charitably, incomplete. Standards weren’t evolving in only one direction, it turned out. Less than two years earlier, Congress had in fact added child rape to the list of capital offenses in the military justice system.

How could the justices not have known this? Simple: no one told them — not Louisiana, which vigorously defended its law; not the other states that supported Louisiana’s argument; and not the federal government, which didn’t even file a brief in the case. The court and all the parties to the case were embarrassed. Would the knowledge have made a difference to any of the five justices in the majority, changing the outcome? Probably not, but who knows? Louisiana asked the court to reconsider its decision, but the justices turned the state down, acknowledging the late-discovered fact in a new footnote while dismissing it as irrelevant.

The column is about much more than the Kennedy case.  Earlier coverage of Kennedy v. Lousiana begins at the link.

Oklahoma Pushes Legal Limits on Taxpayers' Dime

That's the title of an AP report by Sean Murphy via Google News.  LINK  The Oklahoma Legislature is considering a non-homicidal death penalty expansion bill that has been passed by both the House and Senate, but in slightly different forms.

With full control of the Oklahoma Legislature for the first time, Republicans have been flexing their political muscles, passing laws they know will face court challenges, including ones making it harder to get abortions and easier to buy guns.

With the state more than $1 billion in the red, however, even some among their ranks wonder if they can afford such success.

"I respect my colleagues' right to put those issues out there, and I generally vote for most of them, if not all of them. But in these budget times, it is kind of concerning," said Republican state Rep. Doug Cox, of Grove.

Democratic Gov. Brad Henry vetoed a law Tuesday that would restrict federal authorities' ability to regulate the sale of firearms produced and kept in Oklahoma. The Justice Department is challenging a similar law in Montana, and constitutional experts say there is little chance any court would uphold the law.

"It simply makes no sense to continue to pass unconstitutional measures that run up legal bills and waste taxpayers' money," Henry said after rejecting the bill. Despite its slim chances of being upheld, its Republican sponsor has vowed to override the veto.

Lawmakers didn't have much trouble this week overriding Henry's veto of two bills critics have said give Oklahoma some of the strictest abortion laws in the country. One law requires women seeking abortions to undergo an intrusive method of ultrasound early in their pregnancies.

Henry predicted the bill could lead to a "potential futile legal battle," and already an abortion rights group has challenged the ultrasound bill's constitutionality.

"In addition to being constitutionally suspect, these bills are fiscally irresponsible," said University of Oklahoma constitutional law professor Joseph Thai. "Taxpayers may not appreciate that a challenged law costs hundreds of thousands of taxpayer dollars to litigate."

The number of lawsuits challenging state statutes has jumped each of the past three years — with 15 cases filed in 2007, 18 in 2008 and 24 last year. Most cases are handled by the Attorney General's Office, which didn't have an estimate of the number of hours it has spent defending such challenges. But the state sometimes hires outside counsel, as was the case with one lawyer who billed the state $90,000 to defend it against two lawsuits challenging other abortion laws that ultimately were overturned.

In some cases, the number of attorney hours can easily climb into the thousands, and if the state loses, they can be forced to pay attorney fees for the other side, said Micheal Salem, an attorney who reached a "six-figure" settlement with the state last year over a challenge to an Oklahoma law on initiative petition circulators. He declined to disclose the exact amount.

"It's no fun to pay your own attorney, but it's even worse to pay your opponent's attorney," Salem said.

Oklahoma is among the nation's most conservative states, and many residents support the recent Republican-backed measures. But with the state facing a $1.2 billion budget deficit, some residents have questioned whether now is the right time to be picking legal fights.

"They're spending millions of state dollars defending these things for someone to basically have a small headline in the newspaper, and in the long run it will mean absolutely nothing except a lawsuit," said University of Oklahoma art professor Eric Anderson, who said he's worried about possible furloughs at the school amid looming budget cuts. "It's absolute demagoguery."

And:

A bill being considered this session would authorize the death penalty for child rapists — a penalty that was struck down by the U.S. Supreme Court in a Louisiana case two years ago.

Earlier coverage of the Oklahoma legislation begins with this post.  The 2008 Supreme Court ruling referenced in the article is Kennedy v. Louisiana.  Coverage of the case is in the Jessica's Law index; it includes the post National News Coverage of Kennedy v. Louisiana.

Oklahoma Legislators Ignore Supreme Court

The Tulsa Beacon reports, "New bill could give death penalty to repeat child molesters."

State lawmakers voted to increase the penalties - including life in prison and death - facing repeat child molesters.

House Bill 2965, by state Rep. Rex Duncan, would expand the penalties for child molesters, allowing repeat offenders to face life in prison without parole or the death penalty.

“The death penalty is the ultimate deterrent and reserved for worst of the worst criminals,” said Duncan, a Sand Springs Republican who chairs the House Judiciary Committee. “Individuals with a history of violently raping children clearly fall into that category and should face a punishment equal to their crime.”

Under current law, a child molester can face a sentence of 25 years to life for a first offense. Duncan’s legislation will increase the penalty to include a maximum sentence of life without parole.

His legislation will also allow the death penalty to be considered for those convicted of a second or subsequent offense. That provision has been crafted to comply with recent court rulings.

The legislation will also eliminate the “homeless defense” as an excuse for not registering as a sex offender and allow those convicted of failure to register to receive a 20-year prison sentence.

Earlier coverage of the Oklahoma legislation begins with this post; full information on HB 2965 at this LINK.

Related posts, including all Kennedy v. Louisiana coverage, are in the Jessica's Law index.  As I have noted previously, for those who doubt the full sweep of the 2008 Supreme Court ruling, revisiting National News Coverage of Kennedy v. Louisiana, might help clarify.

Perhaps these excerpts from Justice Anthony Kennedy's opinion in Kennedy v. Lousiana would be enlightening:

Consistent with evolving standards of decency and the teachings of our precedents we conclude that, in determining whether the death penalty is excessive, there is a distinction between intentional first-degree murder on the one hand and nonhomicide crimes against individual persons, even including child rape, on the other. The latter crimes may be devastating in their harm, as here, but "in terms of moral depravity and of the injury to the person and to the public," Coker, 433 U. S., at 598 (plurality opinion), they cannot be compared to murder in their "severity and irrevocability." Ibid.

After a lengthy discussion of problems involving a child victim's participation in a capital prosecution, Justice Kennedy concludes:

Each of these propositions, standing alone, might not establish the unconstitutionality of the death penalty for the crime of child rape. Taken in sum, however, they demonstrate the serious negative consequences of making child rape a capital offense. These considerations lead us to conclude, in our independent judgment, that the death penalty is not a proportional punishment for the rape of a child.

Surely, Oklahoma lawyer-legislators know better.

Muskogee Phoenix Opposes Oklahoma Legislation

"Stop extension of state executions," is the title of an editorial in today's edition of the Muskogee Phoenix.

We disagree in principle with a proposal in the state Legislature to execute repeat child rapists. Sex crimes against children are abhorrent, and given children’s inability to defend themselves from adult abuse, we understand the inclination to treat child sex criminals very harshly.

But this editorial board reversed its position on the death penalty a few years ago. We oppose it because of the high number of criminal cases, including murder cases, that were overturned in past years. In fact, Wednesday a North Carolina man held in prison for 17 years on first-degree murder was exonerated and freed.

State Rep. Rex Duncan, R-Sand Springs, proposed and the House Judiciary Committee approved this month a bill that would allow no-parole life prison sentences or the death penalty for repeat offenders who rape children age 6 or younger. Oklahoma already has a law that calls for the death penalty for repeat child molesters if the child is younger than 14, but it has never been used.

Prosecutors’ reluctance to use the law is partly the result of a 2008 U.S. Supreme Court decision that struck down a Louisiana law that permitted the death penalty for child rape. The court ruled the law violated the Eighth Amendment, which bars cruel and unusual punishment.

The Louisiana law allowed the death penalty for first-time child rape convictions. Duncan maintains the Supreme Court would uphold his bill because it applies capital punishment to repeat offenders.

Earlier coverage of the Oklahoma legislation is here.  You can get full information on HB 2965 at this LINK.

Related posts, including all Kennedy v. Louisiana coverage, in the Jessica's Law index.  For those such as Rep. Duncan, who doubt the full sweep of the 2008 Supreme Court ruling, revisiting National News Coverage of Kennedy v. Louisiana, might help clarify.

Oklahoma Legislation

"Okla. panel OKs death sentence for child rapists," is the title of an AP report by Sean Murphy, via the Alva Review.

Repeat sex offenders convicted of raping a child 6 years old or younger would be eligible for the death penalty under a bill approved Monday by a House committee, despite a 2008 U.S. Supreme Court ruling that a similar law was unconstitutional.

The bill by Rep. Rex Duncan, R-Sand Springs, was among a host of measures overwhelmingly approved by the House Judiciary Committee that either create new felony crimes or enhance existing criminal penalties.

Duncan, a former prosecutor who chairs the committee, said he believes the Supreme Court erred in its decision and that his proposed law could be upheld by the new members of the court.

"I think they did get it wrong," Duncan said of the Supreme Court's 5-4 decision, "and I would not be surprised if other states revisit their statutes on this issue."

The Supreme Court decision came in a Louisiana case involving 43-year-old Patrick Kennedy, who was sentenced to death for the rape of an 8-year-old girl. The nation's highest court ruled the Louisiana law allowing the death penalty to be imposed in such cases violated the Constitution's ban on cruel and unusual punishment.

In the court's majority opinion, Justice Anthony Kennedy concluded that in cases of crimes against individuals — as opposed to treason, for example — "the death penalty should not be expanded to instances where the victim's life was not taken."

At the time of the ruling, Oklahoma was among five states to explicitly permit such executions.

Duncan said the intent of his bill is to target child rapists who already have a previous conviction for a violent sex offense.

"If that's what the bill says, the bill is facially unconstitutional," said Randall Coyne, a constitutional law professor at the University of Oklahoma. "The court can change its mind, and it often does ... but I doubt the court would overturn so recent a decision."

State Rep. Ryan Kiesel, the lone opposing vote against the measure, said he agrees child rapists should be handed harsh penalties but questioned the wisdom of a measure that clearly violate a Supreme Court ruling.

"I think it would be a terrible waste of time and money for a district attorney in the state of Oklahoma to seek that punishment and then see that as an appeal issue and take a long time to wind through the courts, putting an additional emotional burden on the victims and their families," said Kiesel, D-Seminole.

The Oklahoman reports, "Oklahoma bills seek to up penalties for repeat sex offenders, adults who
provide liquor to minors."  It's written by Michael McNutt.

"Allowing the death penalty for repeat sex offenders who rape a child younger than 6, punishing adults who provide liquor to teens in their homes by as much as life in prison and requiring at least one hour of counseling before a couple can seek a divorce all won the support Monday of a House committee.

House Bill 2965 is an attempt to comply with a recent U.S. Supreme Court ruling, which basically nullified a 2006 law that allowed execution or life without parole of a person convicted of a second offense of rape or other sex crimes involving a child under 14 years old.

Rep. Rex Duncan, the bill's author, said the intent of his measure is to allow the death penalty or life without parole for convicted sexual offenders who are convicted of raping a child less than 6 years old.

"If the Supreme Court someday finds that this statute is unconstitutional I don't believe that the defendant would be entitled to a new trial or sentencing because it would revert back to the only other sentence that is available which would be life without parole," said Duncan, R-Sand Springs.

The House Judiciary Committee approved the measure 9-1. It now goes to the full House.

More on Kennedy v. Louisiana is from Oyez.  You can get full information on HB 2965 at this LINK.

Speaking of Justice Kennedy ...

As noted in the preceding post, Justice Kennedy was the author of Roper v. Simmons.  He also wrote the opinion in Kennedy v. Louisiana.   David Lat at Above the Law reports on the Federalist Society's annual dinner this past week in Washington, DC, at this post.

As you may have noticed, from our two posts late on Monday night and one from Tuesday morning, we're engaging in some after-the-fact blogging of last week's Federalist Society National Lawyers Convention.

As in past years, the social highlight of the conference was the Thursday night banquet (black tie optional; and many availed themselves of the option, 'cause that's how conservatives roll). The speaker at the dinner was none other than Justice Samuel A. Alito, who delivered an insightful and hilarious speech that was a delight to listen to. Just as one might say of, say, a newscast by Jon Stewart, much of the entertainment value was in the delivery -- Justice Alito is so dry and deadpan, and yet his remarks make you bust out laughing.

Interestingly enough, we haven't come across many news accounts of Justice Alito's speech. There was also no video recording allowed at the address. So we feel we can add some value with this write-up, despite its belated nature.

And:

Justice Alito then made surprisingly candid remarks about Kennedy v. Louisiana (2008), in which the Supreme Court, by a 5-4 vote, held that punishing the crime of child rape with the death penalty violates the Eighth Amendment. He pointed out that in 2006, Congress revised revised the Uniform Code of Military Justice to add child rape to the list of offenses punishable in the military by death (a fact that didn't come to light until after the opinions were issued; it was pointed out by blogger Dwight Sullivan, whose blogging then got picked up by Linda Greenhouse of the New York Times).

In light of this recent federal enactment, multiple state laws to the same effect, and even public opinion polls suggesting support for the death penalty in such cases, was the Court's decision in Kennedy v. Louisiana proper? In Justice Alito's opinion, it was not. Rather, this was an unfortunate case of Justice Kennedy the Court substituting its own judgment for that of the people.

From Froma Harrop

"Cracked Justice Enabled Girl Rape Case," is the title of syndicated columnist Froma Harrop's latest, via Real Clear Politics.  Harrop uses as a news peg the case of Phillip Garrido, accused of the kidnapping and rape of Jaycee Dugard.  Harrop notes that Garrido had been sentenced to 50 years in prison following a 1976 abduction and rape, but was on parole 11 years later.

Until recently, the death penalty for child rape was legal in five states. The U.S. Supreme Court, in a 5-4 ruling, overturned those laws last year. The case at hand involved a stepfather sentenced to death in Louisiana for raping his 8-year-old stepdaughter. The girl was so badly injured that she needed emergency surgery.

Only Louisiana had people on death row for child rape. Georgia, Montana, Oklahoma, South Carolina and Texas required a previous conviction or other aggravating factor to make this a capital crime.

Writing for the court majority, Justice Anthony Kennedy said that while child rape was a "devastating" crime, it did not rise to the level of homicide. It could not be likened to intentional first-degree murder.

A sickening crime, to be sure, but Kennedy is right. It is not my intention here to call for any expansion of the death penalty. On the contrary. Executing prisoners exposes society to the excruciating risk of killing someone who was wrongly convicted. That hazard grows stronger in the cases of child rape, where young witnesses may not be reliable.

But we who oppose the death penalty must also take on grave responsibilities. We must ensure that justice is served and dangerous predators are prevented from harming others. Both ends can be met by keeping bad people behind bars.

And:

And so where does that leave those who oppose capital punishment? It should leave them demanding a justice system that doesn't get sloppy about releasing perpetrators of heinous crimes. Sometimes, you have to be tough to be humane.

Harrop's home paper is the Providence Journal of Rhode Island, where she is a member of the editorial board.

Supreme Court Revises Kennedy v. Louisiana - Rejects Rehearing

While I was arriving and departing various airports today, the U.S. Supreme Court announced a revision to its opinion in Kennedy v. Louisiana, and rejected a request by Louisiana for a rehearing of the case.

Let's start with the initial SCOTUS Blog post, "Court modifies Kennedy death penalty opinion, grants 10 new cases."

The Court’s modified opinion in Kennedy v. Louisiana is now available on the Court’s website, at this link. This is the version that will appear in the United States Reports, the official record of the Court’s opinions.  The separate opinions released on Wednesday are also available on that website, at this link.) Those separate opinions, explaining or commenting upon the denial of rehearing, will be reported in the U.S. Reports separately, as part of the Court’s “opinions related to orders.” The Court is expected, however, to insert a note with the modified opinion referring the reader to these opinions further back in the volume.

Lyle Denniston followed that post with his must-read analysis, "The death penalty calculus is unchanged."  Here's a small excerpt:

After a summer of public conversation, and legal argument, the Supreme Court put an end — at least temporarily — to the speculation that it might alter its approach to the constitutionality of the death penalty.  Despite the very unusual (though not unprecedented) alteration of a previously issued opinion, the Court still is committed to a two-step method of deciding whether a death sentence for a given crime violates the Eighth Amendment. If there is anything new about that calculus, is it that military law probably does not count in it. In fact, the Court left open — as it had before — the question of whether the Eighth Amendment governs the military in the same way it does the civilian community.  That might be tested at some point in the future in a military death penalty case — rare though they are.

But the two-step Eighth Amendment analytical formula the Court has relied on for years remains entirely intact.  The first step is to check for a “national consensus,” canvassing the views of policymakers and legislators at all levels of government.  That does not end the inquiry, however.  The Court, as indicated in the original Kennedy v. Louisiana opinion issued on June 25, assigns “great weight” to such “objective evidence of contemporary values,” but it added that that “does not end our inquiry.”

The second step, then, is for the Court to use its own “independent judgment” — a more-or-less free-standing inquiry “informed” by “our precedents and our own understanding of the Constitution and the rights it secures.”

In Legal Times, Tony Mauro reports, "Supreme Court Denies Rehearing in Child Rape Case."

Justice Anthony Kennedy, who wrote the original majority opinion, wrote on Wednesday that the military death penalty for rape had been the rule for more than a century, and when the Supreme Court in 1977 decided in Coker v. Georgia that the death penalty was unconstitutional for the crime of adult rape, military law was not considered. He also said a military criminal law should not necessarily color the constitutional analysis of a related law in the civilian context.

But the Court, on its own motion, did modify its June decision by adding footnotes and other wording in the majority and dissent making note of the military law change, but concluding that "the military penalty does not affect our reasoning or conclusions."

"Court Won’t Revisit Death Penalty Case," is Adam Liptak's report in Thursday's New York Times.

On Wednesday, Justice Kennedy wrote that the 2006 amendment merely tinkered with a statute that had long authorized capital punishment for the rapes of both adults and children. He added that “authorization of the death penalty in the military sphere does not indicate that the penalty is constitutional in the civilian context.”

Justice Kennedy acknowledged that the last time the military imposed the death penalty, in 1961, it was for rape and attempted murder. He did not say that the victim had been an 11-year-old girl. The defendant in the case before the court, Patrick Kennedy, had been convicted of raping his 8-year-old stepdaughter.

Justice Antonin Scalia, joined by Chief Justice John G. Roberts Jr., also voted not to rehear the case, but on a different ground. Justice Scalia called the original decision disingenuous and suggested that nothing would change it. “The views of the American people on the death penalty for child rape were, to tell the truth, irrelevant to the majority’s decision in this case,” he wrote.

"Court Won't Reconsider Ban on Execution for Child Rape," is Robert Barnes' report in the Washington Post.

The court rarely grants new hearings in cases it has decided. A rehearing would have required five votes, including one from the previous majority.

The existence of the military law came to light only after a civilian Air Force lawyer, Dwight Sullivan, noted it in his military law blog after the decision. His report led to a front-page New York Times story on the omission.

"Supreme Court upholds death penalty ban in the rape of a child," is David Savage's Los Angeles Times report.

Kennedy pointed out that no member of the military was facing a death sentence for raping a child. "In any event, authorization of the death penalty in the military sphere does not indicate that the penalty is constitutional in the civilian context," he said.

Warren Richey has, "Despite gaffe, Supreme Court won't revisit landmark child-rape ruling," in Thursday's Christian Science Monitor.

The June 25 decision said only six states had laws authorizing capital punishment for child rape. But unknown to the justices at the time they wrote the opinion, Congress in 2006 had amended the nation's military law to authorize capital punishment in such cases for child rapists. In 2007, President Bush issued an executive order concurring with the congressional action.

These actions were not discussed in the case briefs to the high court or at oral argument.

In light of the new information, the US Solicitor General's Office and the state of Louisiana asked the court to rehear the          case and take a fresh look at whether a "national consensus" had really formed against the practice.       

The answer came on Wednesday. The author of the opinion, Justice Anthony Kennedy, and the four other members of the majority stood behind the landmark decision, agreeing only to amend the opinion with a footnote mentioning the congressional action.

"The court has determined that rehearing is not warranted," Justice Kennedy said in a three-page statement.

Mark Sherman's AP dispatch is, "High court rebuffs Louisiana in child rape case."

Lawyers for Patrick Kennedy, whose death sentence was overturned by the court, said the justices got it right the first time. Kennedy's lawyers said military law has long authorized death as punishment for rapes of adults and children, but that the military hasn't sought to execute a rapist in more than 40 years.

The administration took no position when the case was argued, but backed Louisiana's call for a new hearing. The administration said in court papers that Kennedy's opinion "rests on an erroneous and materially incomplete assessment of the 'national consensus' concerning child rape."

"Court will not revisit death penalty for child rape," is Diane Jennings' post at the Dallas Morning News Crime Blog.

Texas had a statute similar to the one that was struck down by the Court, but no one was prosecuted under that law.

In the New Orleans Times-Picayune, Paul Purpura examines local response in, "Supreme Court won't rehear La. child rape case."

As he did following the June 25 decision, Gov. Bobby Jindal lashed out at the court, saying justices were "dead wrong in their ruling."

"It is disappointing that they did not take this opportunity to move quickly to rehear this case and examine their legally improper and absurd decision to remove death as a penalty for the horrific crime of child rape, " Jindal said.

U.S. Sen. David Vitter, R-La., said he, too, was disappointed.

"The penalty of execution exists for the most heinous criminal offenses committed by individuals, and the rape of a child is undoubtedly such an offense, " he said.

Earlier coverage is here.  My commentary on Kennedy v. Louisiana and Texas lawmakers is here.  Earlier coverage of the case and ruling is here.

Briefs Submitted in Kennedy v. Louisiana

At SCOTUS Blog, Lyle Denniston writes, "Final brief on Kennedy v. Louisiana."  Here's an excerpt:

In the final brief to be filed before the Supreme Court decides whether to reconsider a major ruling on the death penalty, the state of Louisiana cautioned the Justices not to make the issue depend solely upon the Court’s own constitutional perceptions, arguing that Congress and the state legislatures are entitled to their say, too.

“This Court has never resorted to its independent judgment alone to void a punishment under the Eighth Amendment,” the state’s lawyers said in a supplemental brief filed in Kennedy v. Louisiana (07-343). The Court, at the request of Louisiana, is pondering whether to rehear its June 25 decision striking down the death sentence for the crime of raping a child.

The Justices are scheduled to consider the rehearing petition at their private Conference on Monday.  If rehearing is granted, word of that may become known as early as next Tuesday.  A denial might not become known until Monday, Oct. 6, at the formal opening of the new Term.

In reaching its decision at the end of last Term in Kennedy, the Court used its own “independent judgment,” but also relied upon a finding that there is a “national consensus” among policymakers and legislatures against that penalty for that crime.  Louisiana, joined by the Justice Department, has sought to cast doubt on the ruling, but especially on the second part of that equation, saying that the Court overlooked recent action by Congress and the President in allowing the death penalty for child rape as a matter of military criminal law.

"Child Rape Death Penalty Case: The Latest," is Tony Mauro's post at The BLT.

In an unusual move, the negative reactions of presidential candidates John McCain and Barack Obama to a recent Supreme Court decision have been placed before the justices to support a request that the Court reconsider its ruling. The state of Louisiana included the candidates' statements in its latest filing seeking rehearing of Kennedy v. Louisiana, in which the justices said it is unconstitutional to execute those convicted of child rape when the victim survives.

Earlier coverage is here.

Kennedy v. Louisiana Round-Up

At SCOTUS Blog, Ben Winograd has posted "The Week Ahead."

On Wednesday, the state of Louisiana is to file a brief of up to 4,500 words expressing its views on the merits of the issue raised its petition for rehearing in Kennedy v. Louisiana (07-343), the opinion striking down use of the death penalty for child rape. The Court’s briefing order is available here, and a post containing the briefs filed last week by Kennedy and the United States is available here.

Former New Jersey Supreme Court Justice and Attorney General Peter Verniero has the OpEd, "To maintain its integrity, the court must own up," in Sunday's Newark Star-Ledger.

There is something almost sacrosanct about recitations of law contained in decisions of the U.S. Supreme Court. Lower-court judges, attorneys, law professors and everyday citizens depend on those statements in myriad ways even when disagreeing with the court's conclusions.

If for no other reason than that, the court should reconsider and correct an opinion it filed at the end of its last term, Kennedy vs. Louisiana.

And:

Interestingly, as reported in press accounts, an internet blogger first revealed the court's error by posting a comment on a military law site. None of the nine justices, their law clerks or the lawyers who collectively filed 10 briefs in the case picked up on the mistake. That's not really relevant, either. The court's error reflects only that judges are human with the same flaws as the rest of us.

What matters now is whether the court will stand up for its own integrity. The court should reconsider its decision as the first order of business when the new court term begins early next month. In a promising sign, the justices recently asked Louisiana's counsel and other lawyers involved in the case whether the court should rehear the matter and, if so, whether the existence of the 2006 military law should alter the court's ruling.

Whether the court ultimately reverses its decision will depend on the court's evaluation of a correct survey of the law. Until that happens, we will be left wondering whether its divided Louisiana ruling is entitled to respect based on an accurate review of the law or merely because the court decreed it to be so.

"On the Hill," from the Sunday New Orleans Times-Picayune carried this brief:

Sen. David Vitter, R-La., is asking his colleagues to support his resolution to put the Senate on record as disagreeing with the Supreme Court's ruling this year that rejected the death penalty for people convicted of raping a child. The case involved Patrick Kennedy of Harvey, who was convicted five years ago and sentenced to death. The Supreme Court, which ruled 5-4 that the death penalty was cruel and unusual punishment for a case in which the victim does not die, has since asked attorneys involved in the case to submit briefs on whether the high court should reconsider that ruling. Vitter said the Senate ought to express its position. "My resolution would allow the Senate to express an opinion that matches that of the majority of Americans -- that the court ruled improperly and that the ruling should be overturned," Vitter said. He complained that the Democratic majority isn't giving him a chance to bring up his resolution for a vote.

StandDown's earlier coverage is here.

Kennedy v. Louisiana

SCOTUS Blog's Lyle Denniston reports, "Court urged to hold fast against death for child rape."  Here is an extended excerpt:

Lawyers for a death-row inmate in Louisiana, arguing that military law is beside the point when deciding the constitutionality of criminal sentences for civilians, urged the Supreme Court on Wednesday to leave intact its recent decision nullifying the death penalty for the crime of raping a child.  Had the Court known at the time of its ruling June 25 that there was a provision in military law on that issue (it apparently did not), that might have deserved mention, but perhaps only a footnote, the new brief filed for inmate Patrick Kennedy said in the case of Kennedy v. Louisiana.

The brief also argued that the Kennedy opinion did not go so far as to strike down the death penalty for child rape if that crime occurs in the military context.  Should there be such a prosecution in the military in the future, the brief said, “this Court will have ample opportunity to consider…whether special military requirements entitle the military to more leeway than states under the Eighth Amendment.”

That argument sought to counter a claim by the federal government that the Kennedy opinion is so sweeping that it bars the military from imposing a death sentence for child rape, as the government says is now permitted under a 2006 federal law and a presidential order.

Meanwhile, the Justice Department in its own new filing urged the Court to reopen the case, and change it, at least by allowing that sentence in “aggravated cases” of child rape, perhaps in a military setting. In a brief invited by the Court, Acting Solicitor General Gregory G. Garre said that the Court should not nullify that penalty in the face of support for it by Congress and the President.  “The Court should not displace a recent and emerging consensus reflected in the judgment of the Nation’s political Branches that a particular punishment is appropriate and proportionate,” Garre contended.

The Court is considering a plea by the state of Louisiana to rehear its decision.  The state has been told to file a brief by next Wednesday.  Once that brief is in, the Court will then be in a position to decide whether it will reopen the case and, if so, whether to modify its opinion.

John Marshall Law School prof Corey Rayburn Yung, of the Sex Crimes blog has this post with a link to his paper, "Is Military Law Relevant to the 'Evolving Standards of Decency' Embodied in the Eighth Amendment?"

I have more to say about each of the briefs, but you will have read my thoughts in my new article which I am happy to say will be forthcoming in the Northwestern University Law Review Colloquy. The Colloquy has promised me publication by the end of the month which is fantastic and really shows the potential of online law reviews.

StandDown's earlier coverage of Kennedy v. Louisiana begins here.  My commentary on Kennedy v. Louisiana and Texas lawmakers is here.  Earlier coverage of the case and ruling is here.

Supreme Court Seeks Briefing on Possible Rehearing of Kennedy v. Louisiana

At SCOTUS Blog, Lyle Denniston posted, "Court to explore rehearing in death case," Monday evening.  Here's a brief excerpt from his must-read post:

The Supreme Court on Monday called for new legal briefs on possible rehearing — and, maybe, revision — of its ruling striking down the death penalty for the crime of child rape.  In an order in Kennedy v. Louisiana (found here), the Court sought briefs from lawyers for both sides in the case, as well as from the federal government.  The new briefing in 07-343 is to be completed by Sept. 24 — in advance of the Court’s first Conference of the new Term, on Monday, Sept. 29.

The briefs are to discuss two issues, according to the order: first, whether to grant rehearing of the June 25 decision, and second, what action — if any — the Court should take if it does reopen the case. Here is the way the Court phrased its inquiries: “whether rehearing should be granted” and “the merits of the issue raised in the petition for rehearing” filed by the state of Louisiana on July 21.

That issue, of course, is whether the Court should modify or expand the substance of its ruling in the case because the decision did not take account of a federal law authorizing a death sentence for child rape as part of the military justice system.  This embraces several other related issues: Will the Court rethink its conclusion that there is a “national consensus” against the penalty for that crime? Will it clarify whether one basis for its decision (the absence of a “national consensus”) was more important than the second basis (the Court’s independent view that the punishment was excessive for the crime)? Will it make clear whether rulings under the Eighth Amendment apply to the same degree in the military justice system as in civilian courts? Will it comment in any way on the constitutionality of the military justice provision for the death penalty for child rape?

In Monday’s order, the Justices sought a supplemental brief of up to 4,500 words from attorneys for Patrick Kennedy, the death-row inmate at the center of the case, with that brief due on Sept. 17.  The U.S. Solicitor General’s office is to file a brief of up to 2,500 words, due at the same time, on the federal government’s views.  The state of Louisiana is to file a brief of up to 4,500 words, dealing not only with its plea for rehearing, but also “the merits of the issue raised in the petition for rehearing.”  That final brief is due Sept. 24.

"Court Seeks Briefs on Rehearing Capital Case," is Robert Barnes report in yesterday's Washington Post.

The state of Louisiana and the Justice Department have asked the court to reconsider the 5 to 4 decision because the court was not made aware of what they consider a crucial development: that Congress in 2006 made child rape a capital offense under military law.

No one presented that fact -- it seems none of the parties knew at the time that it existed -- when the court said in June that there was no evidence of a national consensus in favor of putting child-rapists to death. The court further found that in its "independent judgment," child rape could not be compared to murder in terms of warranting the death penalty.

Justice Anthony M. Kennedy wrote the opinion, joined by Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer. It provoked a sharp dissent from the other four justices and was among the most controversial of the term. Presidential candidates John McCain and Barack Obama criticized the ruling.

The decision overturned the death penalty for Patrick Kennedy, 43, who was convicted of raping his 8-year-old stepdaughter in Louisiana in 1998. Justice Kennedy noted in his opinion that Louisiana is one of six states that allowed the death penalty for the crime.

Louisiana did not note in its briefs the little-known change Congress made to military law provisions or the addition of the provision to the Manual for Courts-Martial by President Bush, in an executive order.

"High Court May Revisit Death-Penalty Decision," is the title of Jess Bravin's report in the Wall Street Journal.

Mr. Kennedy's lawyer, Prof. Jeffrey Fisher of Stanford Law School, said he thought a rehearing unnecessary, and would elaborate in his brief next week.

In a 1958 case, the Supreme Court observed that the Eighth Amendment's words "are not precise" and "their scope is not static." In what has since defined the test for cruel and unusual punishment, the court said that the amendment  "must draw its meaning from the evolving standards of decency that mark the progress of a maturing society." Under that test, the court in 1977 struck down capital punishment for rape of a person over 16.

Earlier coverage is here.  My commentary on Kennedy v. Louisiana and Texas lawmakers is here.  Earlier coverage of the case and ruling is here.

Jindal's Cause Macabre

That's the title of James Gill's column in today's New Orleans Times-Picayune.  LINK

You never know, when Gov. Bobby Jindal gets a bee in his bonnet, whether he is acting out of conviction or a desire to burnish his credentials with the Cro-Magnon wing of the GOP.

If Jindal is anywhere near as smart as advertised, the latter must explain, say, his support for Creationism in biology class. His latest crusade -- death to child rapists -- won't do him any political harm either, and is surely a distraction from pressing matters of state. Still, maybe he really wants them dead at that.

Jindal professes himself "outraged over the U.S. Supreme Court's absurd decision to overturn a death penalty sentence" for Patrick Kennedy of Harvey, convicted in the brutal rape of an 8-year-old girl and the only death row inmate in America who had not committed murder.

Jindal is hardly alone in his view that Kennedy received justice from the Louisiana courts. Four of the U.S. Supreme Court justices voted against vacating the death sentence, and Jefferson Parish District Attorney Paul Connick, with Jindal's encouragement, has asked for the decision to be reversed.

U.S. Sen. David Vitter, R-Metairie, has offered a resolution condemning the court for overturning the Louisiana statute that prescribes death for child rapists. As modern conservatives tend to do when confronted with a narrow or ephemeral issue, Vitter also proposes a constitutional amendment.

American exceptionalism is nowhere more apparent these days than in the question of capital punishment. It has come to be regarded as futile and barbarous most everywhere else.

And:

The Supreme Court is not in error until the Supreme Court says it is, however, and nobody is betting that will happen.

Jindal has a back-up plan, and has instructed his lawyers to draft a statute that would make child rape a capital offense and still meet with the Supreme Court's approval. That is a pretty tall order. It would more or less a miracle if the Louisiana Legislature could force the Supreme Court to modify its views of the nation's "evolving standards of decency," and there is a strong whiff of political posturing in the air.

Jindal, and many of his constituents nevertheless, no doubt, share the views of Justice Samuel Alito, who wrote the dissent and noted that not all murderers are necessarily more depraved than all child rapists. It is indeed hard to conceive of worse scum than Patrick Kennedy, but the Supreme Court won't let us kill him whatever Jindal says.

Earlier coverage is in StandDown's Jessica's Law index.

A Round-Up of Kennedy v. Louisiana Items

"Jindal urging death penalty for child rapists," is the title of a Sunday article in the New Orleans Times-Picayune.

Gov. Bobby Jindal said Saturday his administration is working with prosecutors on a bill that would reinstate the death penalty for rape in limited cases, especially for "monsters" who prey on young children.

"If there is any crime (other than murder) that merits the death penalty, it is rape," Jindal told applauding delegates to the 71st annual meeting of the Louisiana Municipal Association, a statewide organization of mayors.

After his speech, Jindal told reporters that besides asking the U.S. Supreme Court to reconsider its 5-4 June ruling throwing out the death penalty law in a Jefferson Parish child rape case, his staff is researching ways to craft a new law that would meet constitutional muster. >

The next time the Legislature could take up such a bill is likely to be in the April regular session, a meeting geared mainly to tax and fiscal matters, although each lawmaker can file five nonfiscal bills.

If Jindal calls a special session before then, he could include a new capital-punishment rape law on the agenda.

And:

Jindal said the high court "made an awful mistake" in striking down the law.

He told reporters that his executive counsel, Jimmy Faircloth, has been meeting with district attorneys and others on ways "to craft legislation we think will stand their (the justices') scrutiny." One factor being examined, he said, is the age limit of the victim. The old law allowed a prosecutor to seek the death penalty for anyone convicted of raping a child younger than 12.

In some twist of morbid irony, the Springfield News-Leader reports, "GOP lawmaker accused of sex with minor supported death penalty for child rapists."

State Rep. Scott Muschany, a Republican lawmaker from suburban St. Louis who was indicted Wednesday for having "deviate sexual intercourse" with a 14-year-old girl, was among 28 Missouri lawmakers who pushed for the death penalty for child rapists.

In March, Muschany signed on to a U.S. Supreme Court brief filed by Gov. Matt Blunt urging the high court to clarify whether the Eighth Amendment prohibits the death penalty for child rapists.

And:

A Cole County grand jury in Jefferson City indicted the 42-year-old Muschany for allegedly sexually assault a minor girl on May 17 — a day after the Missouri General Assembly concluded its 2008 session.

Associated Press reporter Chris Blank has a full story in today's News-Leader about mounting calls by Republican leaders for Muschany to step down.

Muschany abruptly decided on May 20 to take his name off the ballot and not seek re-election, telling The Associated Press, "There's no scandal as far as I'm aware of. My wife and I just decided it wasn't the right time to continue."

St. Louis Post-Dispatch reporter Tony Messenger, the former News-Leader editorial page editor, broke the story on Wednesday.

The article notes that in spite of the governor's advocacy for the bill, it did not reach the Missouri Senate floor and companion legislation was not introduced in the Missouri House.

Sunday's Fort Worth Star-Telegram carried the editorial, "Death penalty ruling should be reviewed."

A criminal conviction must be based on valid evidence. Likewise, a legal interpretation that says a constitutional right trumps the state’s authority to enforce a democratically enacted law must be based on valid considerations.

The court might come to the same conclusion after reconsideration, but it should arrive there after assessing accurate information.

The Star-Telegram Editorial Board has repeatedly argued for restricting capital punishment for the worst of the worst and suspending its application in Texas until serious problems with the system are addressed. Even those who would limit — or abolish — the death penalty can’t be pleased with a key court ruling that’s based partly on a false premise.

On Saturday, the Wall Street Journal ran the OpEd, "The Supreme Court Can't Ignore the Facts," by New York attorney Stuart A. Smith.

Fifty years ago, in Flora v. United States, the court considered whether a taxpayer could bring a tax-refund suit in a federal district court if he did not first pay all of the taxes sought by the Treasury. Initially, the Court held 8-1 (with a short dissent by Justice Charles Evans Whitaker) in favor of the government, that full payment was required.

The Court relied upon its understanding that there was no case in which a taxpayer attempted a refund suit without paying the full amount the government alleged to be due. It was wrong. Tax lawyers around the country soon came forward and reported that they had brought such refund cases. The taxpayer, Walter Flora, thereupon sought a rehearing.

The Court granted the rehearing, and Justices Felix Frankfurter and John Marshall Harlan switched their votes, making the rehearing vote 5-4. They, together with the newly-appointed Justice Potter Stewart, joined Justice Whitaker's expanded dissent after the rehearing.

While the court ultimately upheld its initial decision, Justice Frankfurter's separate opinion has particular resonance with Kennedy v. Louisiana. "Once the basis which for me governed the disposition of the case was no longer available," he wrote, "I was thrown back to an independent inquiry of the course of tax legislation and litigation for more than a hundred years, for all of that was relevant to a true understanding of the problem presented by this case." He added, "This involved many weeks of study during what is called the summer vacation."

The five justices in the majority in Kennedy v. Louisiana should consider Justice Frankfurter's words -- and spend at least a part of their summer vacation reconsidering the basis of their decision.

StandDown's Jessica's Law index is here.

Laurence Tribe on Kennedy v. Louisiana

Yesterday's Wall Street Journal carried the OpEd, "The Supreme Court Is Wrong On the Death Penalty."

It's not often that the U.S. Supreme Court is asked by a state and the federal government to reconsider a case it has just handed down because it missed key evidence.

But that is what is happening now in Kennedy v. Louisiana. In that case, the court ruled in late June that Louisiana could not execute someone convicted of violently raping a child. Dividing along familiar 5-4 lines, the court held, speaking through Justice Anthony Kennedy, that the death penalty must be reserved for killers and traitors. To apply it to others, including the most reprehensible violators of young children, would constitute a "cruel and unusual punishment" violating the Constitution's Eighth Amendment.

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.

Whatever one's view of the death penalty -- and I have long expressed misgivings on both its wisdom and its constitutionality -- it's important that the inequities and inequalities in its administration be minimized. Commitment to that principle, not a rush to the center, lay behind Barack Obama's disagreement with the court's ruling in this case even before the 2006 federal death penalty provision came to public attention.

Earlier coverage is here.

Kennedy v. Louisiana

Today's Los Angeles Times carries the editorial, "Will the Supreme Court reconsider?"

The justices of the U.S. Supreme Court, Justice Robert H. Jackson once archly observed, are not final because they are infallible; they're infallible only because they are final. But what about when they're not?

That question will be presented to the undoubtedly chagrined jurists when they return from their summer recess to consider a motion for reconsideration in one of the court's most celebrated -- and criticized -- rulings of the past term. The case, Kennedy vs. Louisiana, established a prohibition against state laws that would subject anyone but murderers to the death penalty, a welcome result that halted the expansion of a barbaric exercise of the state's ultimate power.

But in concluding that the nation's "evolving standards of decency" commanded that ruling, the court relied in part on the incorrect belief that only six states authorize the death penalty for the rape of a child. In fact, a federal law and a separate executive order provide for the penalty under military law. Because of that mistake, the state of Louisiana has asked the court to reconsider its ruling.

The motion seems unlikely to prevail. The existence of the penalty in military proceedings does not undermine the balance of the court's rationale, even though it does weaken it incrementally. As such, the court's ban seems destined to stand.

Earlier coverage is here.

Louisiana Seeks Supreme Court Rehearing

Louisiana has filed a request for a re-hearing in Kennedy v. Louisiana.  Lyle Denniston reports, "Louisiana seeks change on death penalty, at SCOTUS Blog. 

The petition in Kennedy v. Louisiana (07-343) can be found here.

And:

Under the Court’s rules, a rehearing petition is not subject to oral argument and will not be granted except by a majority of the Court “at the instance of a Justice who concurred in the judgment or decision.” The other side in a case is not allowed to file a response, unless the Court specifically asks it to do so.  The Court’s rules add that, unless there are “extraordinary circumstances,” rehearing will not be granted unless a response is first requested.

The decision in the Louisiana case, issued on June 25, came on a vote of 5-4, with Justice Anthony M. Kennedy writing for the majority. One of those five would have to support rehearing, presumably along with the four dissenters, for that to happen.

In today's New York Times, Adam Liptak reports, "Louisiana Asks Court to Revisit Rape Laws."

Lawyers for the State of Louisiana asked the United States Supreme Court on Monday to reconsider its decision last month striking down laws that made child rape a capital offense. The lawyers said the court’s decision overlooked two crucial legal developments: a 2006 federal law and a 2007 executive order making child rape a capital crime under military law.

“Both political branches have recently and affirmatively authorized the death penalty for child rape,” the petition said. “Such a clear expression of democratic will, at the very least, calls into question the conclusion that there is a ‘national consensus against’ the practice.”

In his opinion for the majority last month, Justice Anthony M. Kennedy counted up the number of jurisdictions that allowed the death penalty for child rape. Finding only six states, he concluded that “on balance” and in light of “evolving standards of decency,” there is a national consensus against such punishment.

But none of the briefs filed in the case had alerted the justices to the two federal legal developments arguably altering that calculus.

The lead lawyer on the rehearing petition is Neal Kumar Katyal, a law professor at Georgetown University who is usually associated with liberal causes. Professor Katyal represented Salim Ahmed Hamdan in the Supreme Court in a 2006 case that rejected the Bush administration’s initial plans to put Guantánamo prisoners on trial before military commissions.

“I am personally opposed to the death penalty, but I am also opposed to courts taking fundamental decisions away from American voters,” Professor Katyal said. “Since the Supreme Court’s decision came down, new evidence has emerged that the justices may have been too quick to identify a national consensus in this case, so when the State of Louisiana gave me the chance to help, I was happy to accept.”

The Justice Department did not file a brief in the case, Kennedy v. Louisiana, but it did issue a statement expressing regret for failing to tell the court about the 2006 law after the oversight was noted in a military law blog. In a statement on Monday, Erik Ablin, a spokesman for the department, said lawyers there would review the petition and consider whether to seek the court’s permission to offer the government’s views on the case.

Jeffrey L. Fisher, a law professor at Stanford who represented the defendant in the case, Patrick Kennedy, said “rehearing is completely unnecessary.” Military law does not apply to Mr. Kennedy, a civilian, Professor Fisher said, and Congress has not made child rape a capital offense for civilians.

"Louisiana asks court to reopen child rape case," is Mark Sherman's AP dispatch, via Google News.

Louisiana prosecutors asked the Supreme Court on Monday to revisit its recent decision outlawing the death penalty for people convicted of raping children.

The unusual request is based on the failure of anyone involved in the case — lawyers on both sides as well as the justices — to take account of a change in federal law in 2006 that authorizes the death penalty for members of the military who are convicted of child rape.

The court almost never grants such requests, but lawyers for Louisiana said their situation was different because the 5-4 decision written by Justice Anthony Kennedy relied in part on what Kennedy called a "national consensus" against executing convicted rapists.

The ruling on June 25 drew harsh criticism from politicians in Louisiana and other states where executing those who rape children was authorized or under consideration. Presidential contenders John McCain and Barack Obama also said they disagreed with the outcome of the case.

But only in the days following the decision did anyone point out that Congress changed the law and that President Bush signed an executive order in September 2007 that implemented the change. It was first discussed on a military law blog.

Louisiana "regrettably did not know of this federal provision," the state's lawyers wrote Monday. "This was a significant error, for which (Louisiana) accepts full responsibility."

The New Orleans Times-Picayune has, "Review sought of child-rape case ruling," by Paul Purpura.

Jelpi Picou, director of the Capital Appeals Project in New Orleans, which helped in Kennedy's appeal, said "the rehearing is really uncalled for."

He said the military's law allowing the execution of child rapists predates 1977, when the Supreme Court banned the death penalty for the rape of an adult. Congress two years ago merely amended the law to say that consent was not a defense, Picou said, though the military has not executed a child rapist since 1961.

"I think that the majority is not going to be swayed by the clarification" to the military law, Picou said. "And I don't think the minority missed anything."

Carl Tobias, a University of Richmond, Va., law professor not involved in the Kennedy case, said Connick has "certainly a valid reason" to seek a rehearing, but justices rarely grant them.

"I'm not sure if that one reason will be sufficiently compelling to overturn the entire case, " Tobias said.

Earlier coverage is here.

Continued Commentary on Kennedy v. Louisiana

There is continuing commentary about the U.S. Supreme Court's ruling last month in Kennedy v. Louisiana.  Today's Sacramento Bee has the OpEd, "Death penalty for child rapists risks fatal injustice." by Ken Rosenfield.

The U.S. Supreme Court, in a 5-4 decision last month, struck down a Louisiana law that imposed capital punishment for those convicted of raping a child. At the center of this decision was 43-year-old Patrick Kennedy, an African American man convicted of the brutal rape of his then-8-year-old stepdaughter. During the course of the investigation, the victim gave many varied accounts of her assault, at first blaming two neighborhood youths and only pointing the finger at her stepfather after several interviews by psychologists working with law enforcement.

The majority decision was delivered by Justice Anthony Kennedy of Sacramento. The court's newest justice, Samuel Alito, delivered a biting dissent. Justice Alito's opinion is chilling, not because of its legal reasoning that states should be allowed to enact laws as they see fit, but for the fact that he took the position that those who are convicted of raping a child should be executed, owing to the heinousness of the crime.

The use of capital punishment is founded upon two principles: retribution and deterrence. The majority found that evidence suggested the death penalty may not result in more effective enforcement but may indeed add to the risk of non-reporting. It's a statistical reality that the majority of sexual assaults on children occur at the hands of a parent, relative or close family friend. Thus, children may feel pressured not to report the abuse if there's a likelihood that the perpetrator may face execution. The idea, then, that capital punishment will act as a deterrent is unfounded, and the National Association of Social Workers filed an amicus brief in support of striking down the law for that reason.

South Carolina's Spartanburg Herald-Journal carried opposing OpEds on Sunday.  "Creation of rape-death penalty statute was bad politics," is by Bobby Frederick.

The court takes note of the "relevant systemic concerns in prosecuting child rape, including the documented problem of unreliable, induced and even imagined child testimony, which creates a special risk of wrongful execution in some cases."

There are many problems with cases involving child testimony. Child molestation cases often arise in the context of divorces and custody disputes, and there are often problems with the testimony. One problem that arises quite often is the problem of suggestive interviewing techniques with children and the problem of repeated interviews.

I have seen cases where the interviewer asks the child leading questions (suggestive of the answer), the child denies the allegations, and the interviewer continues asking the same leading question in different ways or keeps coming back to the question, until the child gives the answer the interviewer is looking for.

This can be compounded by the effect of multiple suggestive interviews, often beginning with a family member who may be suspicious or have an ax to grind, followed possibly by other family members, followed by an officer and then one or more interviews by a child advocate.

The effect of suggestive interviews on a very young child, particularly when they are repeated, is that the child may begin to believe the allegations, even if they were not true to begin with. The state then has a very credible and believable witness with which to prosecute its case. In South Carolina and other states, laws have been passed that would allow the presentation of videotaped testimony by the child in court - without the opportunity to cross-examine and in violation of the right to confront witnesses.

The second Herald-Journal OpEd is, "Court's ruling reflects arrogant rationalization," by state senator Kevin Bryant.

In 2006, the S.C. General Assembly stood up for children when it passed legislation providing for the death penalty in cases where someone rapes a child. I led the fight for the inclusion of the death penalty sentencing in South Carolina's version of Jessica's Law, then making its way through the General Assembly. I view no moment of my service in Columbia with more significance than the day we won that vote.

Justice Anthony Kennedy, the author of the U.S. Supreme Court opinion, rationalizes the rape of a child as a lesser offense by saying that " 'in terms of moral depravity and of the injury to the person and to the public,' they cannot compare to murder in their 'severity and irrevocability …'. " Kennedy's definitions of "severe" and "irrevocable" apparently do not apply to the rape of a child.

Finally, Scripps Howard News Service distributed the editorial, "Painful but wise," Thursday afternoon.

The child-rape decision now joins a series narrowing the death penalty's scope. Within the past few years, other rulings barred its use against juveniles and mentally retarded people. The prohibition is especially welcome in the case of child rape. For one thing, children's testimony can be unreliable. It may easily be distorted by fear or imagination, or manipulated by adults. But also, child rapes often occur within a family. Knowing that a parent or other relative could be executed may frighten a child into silence, and continued victimization. Other family members might collude in shielding the offender.

The high court's decision in no way minimizes the seriousness of child rape. It does, however, acknowledge the unique character of the offense, and point toward potentially better responses. At the same time, it newly underscores the shortcomings of the death penalty.

Earlier coverage is here.

Justice Dept. Admits Error in Not Briefing Court

That's the title of Linda Greenhouse's report in today's New York Times.  LINK

In a highly unusual admission of error, the Justice Department acknowledged on Wednesday that government lawyers should have known that Congress had recently made the rape of a child a capital offense in the military and should have informed the Supreme Court of that fact while the justices were considering whether death was a constitutional punishment for the crime.

“It’s true that the parties to the case missed it, but it’s our responsibility,” the department’s public affairs office said in a statement.

“We regret,” the statement said, “that the department didn’t catch the 2006 law when the case of Kennedy v. Louisiana was briefed.”

In that case, decided June 25 by a vote of 5 to 4, the court ruled that the Constitution prohibits the death penalty for the rape of a child. Justice Anthony M. Kennedy’s majority opinion was based in part on the conclusion that because child rape was a capital offense in only six states, and not under federal law, the death penalty for the crime did not meet the “evolving standards of decency” by which the court judges capital punishment.

Justice Kennedy’s conclusion about the absence of federal law was mistaken. Not only did Congress add child rape to the military death penalty in 2006, but President Bush, in an executive order last September, added the new provision to the current version of the Manual for Courts-Martial.

The solicitor general’s office, which represents the federal government before the Supreme Court, did not file a brief in the case, and none of the 10 briefs that were filed informed the justices of the new federal law.

A civilian Air Force lawyer, Dwight Sullivan, mentioned the omission over the weekend on his military law blog. The New York Times reported the oversight in an account that first appeared Tuesday on its Web site.

And:

As the department’s statement noted, only parties to a case can ask the justices to reconsider their decision. The department might ask the court for permission to provide its views if Louisiana files a rehearing petition, the statement added.

Steve Wimberly, the first assistant in the Jefferson Parish, La., district attorney’s office, which handled the case for the state before the Supreme Court, said in an interview Wednesday that while no decision had yet been made, “we are strongly considering the option of asking the justices to reconsider the case.”

Mr. Wimberly added that Gov. Bobby Jindal, who denounced the court’s ruling, was involved in deciding how to proceed.

The Justice Department statement was carefully worded to avoid conceding that under the reasoning of the Supreme Court decision, the military death penalty provision for child rape is now unconstitutional.

Greenhouse's original article is noted in this post yesterday.

Commentary on Kennedy v. Louisiana

Today's Lubbock Avalanche-Journal carries an OpEd by Texas Tech Law prof Arnold Loewy, "Death penalty should not be applied to cases of child sexual assault."

Kennedy v. Louisiana, the recent Supreme Court decision outlawing the death penalty for convicted child rapists, has upset many politicians and much of the citizenry as well. For example, Sen. John McCain was quoted as calling the decision "an assault on law enforcement's efforts to punish these heinous felons for the most despicable crime."

Whatever else might be said about the decision, it does not prevents the state from punishing child molesters. Life imprisonment without parole is hardly a pleasant prospect for anybody. But child molesters are not well-liked in prison, and from what I understand, those who believe in "an eye for an eye, tooth for a tooth" form of punishment could not imagine greater retribution than life imprisonment for a child rapist.

And:

This brings me to my final concern. The death penalty may well deter children from reporting the rapes against them. It is one thing to send Uncle Charlie away for a long time because of what he did to the child. But to kill him because of a little girl's testimony is a lot to put on the head of an already abused and traumatized child. Surely she does not need to go through life thinking that her testimony killed her uncle (or in the Kennedy case, stepfather), about whom she most likely had ambivalent feelings.

For this reason, the National Association of Social Workers feared allowing capital punishment would make it less likely that young rape victims and their families will report the rape to authorities. If so, there would be less rather than more punishment of child rapists.

For all of these reasons and more, the Supreme Court rightly held that the death penalty for child rapists is cruel and unusual punishment, and, as such, has no place in any state in this great country. For that, the court should be applauded, not condemned.

My commentary on Kennedy v. Louisiana and Texas lawmakers is here.  Earlier coverage of the case and ruling is here.

More Political Reaction to Kennedy Ruling

Yesterday, I posted an AP report by Deborah Hastings on political response to Kennedy v. Louisiana.  A revised version is, "Unbowed, politicians vow to execute child rapists," via Google News.

Angry politicians vowed to keep writing laws that condemn child rapists to death, despite a Supreme Court decision saying such punishment is unconstitutional.

"Anybody in the country who cares about children should be outraged that we have a Supreme Court that would issue a decision like this," said Alabama Attorney General Troy King, a Republican. The justices, he said, are "creating a situation where the country is a less safe place to grow up."

The court's 5-4 decision Wednesday derailed the efforts of nearly a dozen states supporting the right to kill those convicted of raping a child — and said execution was confined to attacks that take a life and to other crimes including treason and espionage.

Jurist has, "Child rape should remain punishible by death: politicians," with links to several press releases by politicians.

A number of politicians have denounced Wednesday's US Supreme Court ruling [Kennedy v. Louisiana opinion text; JURIST report] that the death penalty constitutes cruel and unusual punishment for the rape of a child. At a press conference, Democratic Party presidential candidate Barack Obama (D-Ill) said [MSNBC report] that

[T]he rape of a small child, six or eight years old is a heinous crime, and if a state makes a decision that under narrow, limited, well-defined circumstances, the death penalty is at least potentially applicable, that does not violate our constitution.

Republican Party presidential nominee John McCain (R-Ariz.) also disagreed with the ruling, commenting [press release]

That there is a judge anywhere in America who does not believe that the rape of a child represents the most heinous of crimes, which is deserving of the most serious of punishments, is profoundly disturbing.

Alabama Attorney General Troy King called the Supreme Court's ruling unconstitutional [press release], while Louisiana Governor Bobby Jindal commented that the ruling "suppresses the constitutional authority of state legislatures" [press release]. Governor Jindal also said that Louisiana state officials would work to amend the statute to preserve the death penalty for child rapists.

My commentary on the Kennedy ruling and Texas lawmakers is here.  Earlier coverage is here.

Texas News Coverage of Kennedy v. Louisiana

"Court ruling weakens child-rape law in Texas," is Jason Embrey's report in the Austin American-Statesman.

The U.S. Supreme Court on Wednesday said states cannot use the death penalty to punish child rapists if the victim is not killed, erasing a key plank in the so-called Jessica's Law that Texas lawmakers passed last year.

The Texas law permitted the death penalty, or life in prison without parole, for the second conviction of aggravated sexual assault of a child younger than 14. The life-in-prison punishment will remain available to prosecutors.

And:

Although several state leaders criticized the Supreme Court's decision, it was especially a setback for Lt. Gov. David Dewhurst, who put Jessica's Law at the top of his 2007 agenda.

"Supreme Court rejects death penalty for child rapists," by Diane Jennings in the Dallas Morning News.

When Texas' leading politicians called loudly for the death penalty for repeat child rapists last year, they knew there was a good chance the U.S. Supreme Court might find the provision unconstitutional. Legal experts told them so – repeatedly.

And on Wednesday the Supreme Court, in a 5-4 decision in a Louisiana case, did just that, ruling that "the death penalty is not a proportional punishment for the rape of a child."

The decision didn't surprise many, said Shannon Edmonds, staff attorney for government relations with the Texas District and County Attorneys Association.

"A lot of legal experts had seen the writing on the wall from the Supreme Court," he said. "Whether those people, on both sides, agree with what the Supreme Court was going to do or not, didn't mean they didn't see it coming."

And:

State Sen. Rodney Ellis, the Houston Democrat who was the Senate's lone "no" vote against the death penalty for child sex offenders, said he's pleased with the Supreme Court ruling.

"At some point we have to decide where to draw the line on something being politically right but morally wrong," he said.

Politicians seeking to polish their tough-on-crime credentials may have been disappointed by the decision, but some victims' rights advocates were pleased.

"We join sexual assault coalitions across the country in applauding the Supreme Court's step toward ensuring that prosecutions of child sexual assault across our nation remain victim-centered and child-friendly in their approach," said a prepared statement released by the Texas Association Against Sexual Assault.

Some organizations had warned legislators the law could result in victims being unwilling to prosecute or perpetrators less likely to leave their victims alive.

"Most child sexual abuse victims are abused by a family member or close family friend," the statement from the Texas association said. "The reality is that child victims and their families don't want to be responsible for sending a grandparent, cousin or long time family friend to death row."

"States can't give death penaly for child rape," by Anna Tinsley in the Fort Worth Star-Telegram.

Jessica’s Law boosts penalties for those who commit a sexually violent crime against a child younger than 14. For the first offense, it’s at least a 25-year prison sentence. For a second offense, the law calls for the death penalty. A provision in the law states that if the death penalty is struck down, predators can still be sentenced to life in prison.

No such cases were pending in Tarrant County, said Alana Minton, chief of the crimes against children unit in the district attorney’s office.

"DEATH PENALTY RULING'S IMPACT ON TEXAS," by Janet Elliott in the Houston Chronicle.

Although they will not face execution, criminals who sexually assault Texas children will serve longer sentences without the possibility of parole under provisions of Jessica's Law not affected by Wednesday's U.S. Supreme Court ruling.

No one in Texas has been sentenced to death under the provisions of the law, which went into effect last September.

The death penalty provision — reserved for a narrow category of repeat child sex offenders — received the most attention last year when state lawmakers debated the high-profile bill.

But the bill also made other significant changes, including mandatory minimum sentences and a new offense — continuous sexual abuse — designed to let prosecutors present cases involving a series of victims in one trial.

The San Antonio Express-News carries a slightly different version of Elliot's report as, "High court rules child rapists can't be executed."

Both Gov. Rick Perry and Dewhurst expressed disappointment in the high court ruling.    

"Court rejects death penalty for child rape," is a Texas AP dispatch by Jim Vertuno, via the San Antonio Express-News.

The death penalty provision was championed by Republican Lt. Gov. David Dewhurst. He invited Mark Lunsford, a Florida man whose daughter Jessica was killed by a registered sex offender, to the Capitol to drum up support.

"Jessica's Law" passed the House and Senate with large majorities. Sensing a constitutional problem, however, the law was written in a way allowed the courts to strike down the death penalty provision without damaging other tough sentencing measures.

And:

State Sen. Rodney Ellis, a Houston Democrat, was the only senator to vote against the bill. He said the law played on the emotions of an awful crime.

Ellis said the state should not expand use of the death penalty at a time when dozens of inmates in Texas have been exonerated of their crimes with DNA testing.

"I always stress that I'm for the death penalty," Ellis said. "(But) I think it was just playing with people's emotions. What's wrong with locking people up and throwing away the key?"

Earlier coverage is here.

National News Coverage of Kennedy v. Louisiana

Linda Greenhouse writes the report, "Justices Bar Death Penalty for the Rape of a Child," in the New York Times.

Justice Anthony M. Kennedy, writing for the majority, said there was “a distinction between intentional first-degree murder on the one hand and nonhomicide crimes against individual persons,” even “devastating” crimes like the rape of a child, on the other.

The decision was the third in the last six years to place a categorical limitation on capital punishment. In 2002, the court barred the execution of mentally retarded defendants. In 2005, it ruled that the Constitution bars the death penalty for crimes committed before the age of 18.

Nonetheless, despite this trend toward narrowing the application of the death penalty, there was no suggestion from the majority that the court was moving toward the abolition of capital punishment, which Justice John Paul Stevens called for in an opinion two months ago that no other justice joined.

Justice Kennedy said on Wednesday that while the court’s death penalty jurisprudence “remains sound,” it should not be expanded to cover a crime for which no one has been executed in the United States for the past 44 years.

In the Washington Post, Robert Barnes has, "High Court Rejects Death For Child Rape."

Kennedy said that more than 5,700 incidents of vaginal, anal or oral rape of a child younger than 12 reported were reported in 2005, more than twice the number of intentional murders of victims of all ages.

The courts already are overwhelmed with death penalty appeals from the few murderers who receive it, and Kennedy said it would be nearly impossible to develop a legal foundation that would ensure that only the worst child-rapists are executed.

He also said there are "serious systemic concerns" in prosecuting the crime of child rape, including that children are highly susceptible to coaching and are unreliable in testimony. Child advocates oppose the death penalty in such cases, telling the court that it would lead to underreporting of the crime, especially when the perpetrator is a family member, and could also remove any incentive for the rapist not to kill the child.

In Legal Times, Tony Mauro writes, "Justices reject death penalty for child rape."

The decision in Kennedy v. Louisiana came on the next to last day of the term and did not fit this term's pattern of generally greater unanimity in decision-making among the justices.

The Court struck down the death penalty for raping an adult in the 1977 case Coker v. Georgia, but until Wednesday it had not closed the door completely on executing those convicted of other non-homicide crimes against individuals.

Though instances of child rape can be "devastating in their harm, as here," Justice Anthony Kennedy wrote for the majority, "they cannot be compared to murder in their severity and irrevocability."

Kennedy also wrote, "When the law punishes by death, it risks its own sudden descent into brutality, transgressing the constitutional commitment to decency and restraint."

The Chicago Tribune reports, "High court refuses to allow death penalty for child rape," by James Oliphant.

Sen. Barack Obama, the presumptive Democratic nominee for president, criticized the court's decision at a Chicago news conference. "I have said repeatedly that I think that the death penalty should be applied in very narrow circumstances for the most egregious of crimes," he said. "I think that the rape of a small child, six or eight years old, is a heinous crime, and if a state makes a decision that under narrow, limited, well-defined circumstances, the death penalty is at least potentially applicable, that that does not violate our Constitution."

Obama has frequently cited the near-abolishment of the death penalty in Illinois as one of his top legislative accomplishments.

His likely Republican opponent, Sen. John McCain, also disagreed with the ruling. "Today's Supreme Court ruling is an assault on law enforcement's efforts to punish these heinous felons for the most despicable crime," McCain said. "That there is a judge anywhere in America who does not believe that the rape of a child represents the most heinous of crimes, which is deserving of the most serious of punishments, is profoundly disturbing."

"Justices Overturn the Death Penalty For Child Rape in Louisiana," in the Wall Street Journal by Mark Anderson.

The high court has pared the death penalty's scope in recent years in other ways, including cases involving juveniles and mentally retarded people. The majority said they based their decision, in part, on what they believe state laws reveal about a national consensus.

"The evidence of a national consensus with respect to the death penalty for child rapists, as with respect to juveniles, mentally retarded offenders and vicarious felony murders, shows divided opinion but on balance an opinion against it," Justice Kennedy said.

Joan Biskupic writes, "Justices reject death penalty for child rapists," in USA Today.

In an opinion by Justice Anthony Kennedy, the court said the death penalty should cover only murder in crimes against individuals. The court specifically said it was not addressing crimes against the government, such as espionage or terrorism. "There is a distinction between intentional first-degree murder on the one hand and non-homicide crimes … even including child rape, on the other," Kennedy wrote, joined by the four more liberal justices. "The latter crimes may be devastating in their harm, as here, but in terms of moral depravity and of the injury to the person and to the public, they cannot be compared to murder in their severity and irrevocability."

AP's Deborah Hastings has a roundup of reaction in, "Some lawmakers angered by death penalty ruling," via the San Antonio Express-News.

Legal experts were divided on the potential success of such tactics.

According to Douglas Berman, a professor at Ohio State University's Moritz College of Law, the justices' ruling appears ironclad. "In the absence of death, the death penalty is off the table," he said. "Instead of a highly contextual and nuanced discussion ... the court asserted that states can only use the death penalty against rapists in the case of death.

"It could have left open the possibility of revamping child rape laws, by age for example, but it did not."

Law professor Deborah Denno of Fordham University wasn't so sure.

"No case is necessarily definitive when you're looking at specific language," she said. "I don't think this is airtight." It could be possible to argue applying the death penalty against attackers who "intended to kill" their victims, but didn't, she said. Or those who assault especially young children, such as toddlers, she said.

Earlier coverage is here.

Editorials on Kennedy v. Louisiana

Today's New York Times carries the editorial, "Anger and Restraint."

For the law to be just, it must temper society’s anger over even the most horrible acts with decency and restraint. The Supreme Court exemplified that principle on Wednesday, striking down the death penalty for the rape of a child. While acknowledging the horror of the crime, Justice Anthony Kennedy’s majority opinion drew on widely shared standards of decency, constitutional law and real-world impact to explain why the Constitution forbids punishing it with death.

The 5-to-4 ruling also laid down a critical standard: in cases of crimes against individuals (which excludes treason and espionage) the death penalty can be applied only when the victim’s life is taken. That rule should deter efforts to extend the use of capital punishment.

Justice Kennedy wrote that defendant Patrick Kennedy’s rape of his 8-year-old stepdaughter was an act “that cannot be recounted in these pages in a way sufficient to capture in full the hurt and horror inflicted.” But the Eighth Amendment, he noted, requires that a penalty be a “graduated and proportioned” response.

One way the court assesses proportionality is by looking at how society treats particular crimes. For child rape, he argued, there is a consensus: Forty-four states do not make it a capital crime. Louisiana is the only state that has sentenced anyone to death for child rape since 1964.

The court must also use its own judgment, based on its reading of the Constitution and of its own precedents. Justice Kennedy argued that morally, the state’s taking of a life is unique in its severity and irreparability. It should, he concluded, be limited to homicide, an act that is in its own category of moral depravity.

The ruling also argued that it was not in the interest of a child victim to be dragged into a capital case as the complaining witness, and to compel that child to spend years trying to help the state put someone to death.

USA Today has the editorial, "Child rapist escapes death, but not tough justice."

The Supreme Court's latest death penalty ruling, issued Wednesday in a child-rape case from Louisiana, reinforces two closely linked trends.

Most obviously, the ruling continues the court's steady narrowing of capital punishment's reach. Less noticed is the fact the court has done so at about the same pace that states have created an alternative that makes the death penalty pointless, along with the controversy that it generates. Life in prison without the possibility of parole, which barely existed when the court reinstated executions in 1976, is now an option in 35 of the 36 death-penalty states.

And:

The decision overturns laws in six states that permit executions for child rape. And it appropriately moves the USA a step further from an irreversible practice that has proved to be problematic, discriminatory, out of step with most of the developed world, and no more a deterrent than the prospect of being locked in a tiny cell for decades.

My commentary on the ruling is here; coverage of the ruling -- and earlier coverage, here.

Some Thoughts on the Kennedy Ruling and Texas Lawmaking

Three items stand out to me after reading today's ruling in Kennedy v. Louisiana.  First, as Justice Kennedy noted in his opinion:

“As to deterrence, the evidence suggests that the death penalty may not result in more effective enforcement, but may add to the risk of nonreporting of child rape out of fear of negative consequences for the perpetrator, especially if he is a family member. And, by in effect making the punishment for child rape and murder equivalent, a State may remove a strong incentive for the rapist not to kill his victim.”

The Texas Legislature, under some pressure from Lt. Gov. Dewhurst, passed a death penalty provision in spite of the testimony of those who know the problem of child abuse best; sex offender treatment counselors, social workers, others who treat victims of sexual abuse, as well as many prosecutors.   The language that Justice Kennedy wrote in today's opinion mirrors the testimony of so many of those experts who testified against this provision in the bill at House and Senate committee hearings.

Lt. Gov Dewhurst had made the death penalty provision a centerpiece of his political platform; it was his highest priority in the session.  Texans would have been far better served by allowing the committee process to work as it's designed to, without political interference.  In the final analysis legislators discarded the testimony of experts from across the state in favor of a political accommodation.  Editorial writers across Texas listened to the experts and urged legislators to drop the death penalty provision, but their voices were also lost on legislators.

Second, it's important to note some numbers.  The Court gave great reliance upon our evolving standards of decency in today's ruling, and the passage of state legislation is one measure the Court looks to in assessing that standard.

While various versions of  the Jessica's Law proposal have passed in 34 states, only four passed a death penalty provision -- all states with active execution chambers. Texas was the last state to adopt the provision; several states looked at the proposal in 2008 legislative sessions and all rejected it.  As the Court noted, 45 jurisdictions do not allow execution for child rape of any kind. 

(The Louisiana and Montana laws predated the Jessica's Law model.  The original Jessica's Law proposal only called for a death penalty when the child-victim was killed.  The other states that passed a non-homicidal death penalty were Georgia, Oklahoma, and South Carolina.)

Finally, Justice Kennedy notes:

"There are also relevant systemic concerns in prosecuting child rape, including the documented problem of unreliable, induced, and even imagined child testimony, which creates a 'special risk of wrongful execution' in some cases."

Given Texas' past record of executions in highly questionable cases, as well as capital and non-capital exonerations, our state should be providing heightened screening to prevent wrongful convictions and executions.

I'd point to several specific posts from the 2007 legislative session:

• Adam Gershowitz on Texas Jessica's Law - May 2, 2007
• Jessica's Law in the Senate Criminal Justice Committee - March 13, 2007
• The House Consideration of HB 8 - March 1, 2007

Complete coverage of Texas and other state legislative consideration is in the Jessica's Law index.

In Utah

The Sal Lake Tribune reports, "Jessica's Law aims to avenge raped children."

State Rep. Carl Wimmer, who sponsored Jessica's Law legislation in Utah, wants to make the worst sex crimes against children punishable by death.

The U.S. Supreme Court is considering the issue in the appeal of Patrick Kennedy, 43, on Louisiana's death row for the 2003 rape of his 8-year-old stepdaughter.

Kennedy is the only person on death row for a rape that didn't result in murder, and argues it's unconstitutional for him to receive the death penalty.

The high court banned capital punishment for rape of adult victims in 1977. Five states - Louisiana, Montana, Oklahoma, South Carolina and Georgia - still allow for the death penalty if the rape victim is younger than 12.

And:

State Rep. Carl Wimmer, who sponsored Jessica's Law, says he'll try to go one step further next session by pushing to make the same crimes punishable by death if the U.S. Supreme Court rules the practice constitutional in a pending Louisiana case.

Two corrections, a second individual sits on death row in Louisiana, convicted of non-homicidal child rape, as noted in this post.  Texas also has a non-homicidal death penalty for child rape.

As I've noted before it's striking that only three states have a death penalty component to their version of Jessica's Law, which has found great favor in legislatures across the country.

The Jessica's Law index is here.

Supreme Court Watching

Earlier today, the Supreme Court issued rulings in four cases.  With less than a month left in the term this leaves 22 cases pending, including Kennedy v. Louisiana and Rothgery v. Gillespie County.

Thursday is the next day the Court is scheduled to release opinions, beginning at 10:00 a.m., EDT.  SCOTUS Blog will live blog the announcements of rulings.

Edward Lazarus' latest FindLaw column is, "The Supreme Court’s Term So Far:  An Unusual Degree of Agreement, With Liberals Joining 'Conservative' Rulings and Vice-Versa."

Although the Supreme Court has yet to decide some of the most important pending cases before it, it is not too soon to say that this has been a surprising term. Based on last term’s record, most prognosticators (including me, I must confess) thought that this term would see another spate of hard-fought 5-4 decisions in which the Court split along its well-established ideological divide, with Justice Anthony Kennedy playing the role of swing justice, delivering victory to one side or the other. Instead, the Court has achieved a significantly higher degree of consensus in many cases that were good candidates for 5-4 battles – with some liberal justices joining “conservative” decisions and some conservative justices joining in “liberal” ones.

In this column, I’ll examine some of the cases that might have been 5-4, but were not, and also consider explanations for why the Court has been able to achieve more consensus than many expected.

Earlier coverage of Kennedy is here; earlier coverage of Rothgery, here.

Challenges Grow Over Sex Offender Laws

That's the title of an article in the current issue of National Law Journal reported by Pamela MacLean.  LINK

The creation of complex sex offender registration systems and increasingly stringent limits on where offenders may live has spawned hundreds of legal challenges in state and federal courts throughout the nation.

The actions range from how long electronic tracking devices must be worn to whether juvenile records must be part of public registrations.

Challenges to the new laws — often hastily passed in the wake of a brutal crime — generally center on battles over who must comply, making retroactivity and prospective treatment crucial.

Takings claims under the Fifth Amendment of the U.S. Constitution also weigh heavily when a sex offender is forced from a long-time home by newly imposed bans on living near playgrounds or video arcades.

So far, 20 states have laws restricting where sex offenders can live, and hundreds of cities have their own limits, according to Wayne Logan, a criminal law professor at Florida State University College of Law in Tallahassee.

The most common laws banish offenders from zones within 2,000 feet of schools and parks.

The Georgia Supreme Court recently struck down a residency restriction on Fifth Amendment grounds, but upheld a portion that barred sex offenders from working in the restricted zones, Logan said. Mann v. Georgia Dept. of Corrections, 282 Ga. 754 (2007).

The California Supreme Court must choose from a raft of theories on how to apply a 2006 voter-approved residency law prospectively. So far, the plaintiffs, the state attorney general, local district attorneys, the governor and state prison officials have all weighed in with different positions. In re E.J. habeas corpus, No. S156933 (Calif.).

But it is Ohio that finds itself in the midst of a legal meltdown because of a shift in sex offender registration law. Ohio rushed to switch from a long-standing state offender registration program to the 2006 federal Adam Walsh Child Protection and Safety Act registration system.

And:

And the Adam Walsh Act faces federal constitutional challenges. Two federal circuit courts, the 4th Circuit and the 11th Circuit, are now considering whether Congress violated the Constitution's commerce clause in passing the Adam Walsh Act because challengers allege it has no nexus with interstate commerce. U.S. v. Comstock, No. 06-hc-2195BR, and U.S. v. Powers, 07-cr-221KRS.

 

Child Rape Measure Shelved in Missouri

The Missouri Legislature adjourned Friday evening leaving Gov. Matt Blunt's proposed death penalty for child rapists on the table.  The St. Louis Post-Dispatch had, "Lame ducks, term limits, mean slow session."

Spending time on side issues marked an election-year session where bills moved slowly, Republicans lacked unity and few major initiatives passed.

While a burst of activity on the final day Friday salvaged GOP priorities dealing with immigration and property taxes, the session will be remembered mostly for intraparty tension and lame-duck leaders' lack of control.

And:

Legislators also shelved Blunt's proposed changes in abortion laws and balked at imposing the death penalty for child rapists. In an unusual move, they even spiked a big increase by his administration in fees for drivers license records.

The Kansas City Star has has, "Status of major Missouri legislation."

House members had added the provision to other legislation on Thursday, as the Springfield News-Leader noted in Friday's article, "House approves death penalty for child rape."

The provision was added by voice vote to a larger judiciary bill that also attracted numerous other amendments. Lawmakers have only until 6 p.m. Friday to pass legislation.

No state has added the death penalty for non-homicidal child rape in 2008.  Missouri Governor Matt  Blunt had campaigned actively for the provision.  Earlier coverage of the legislation in Missouri is here.  The Jessica's Law index, with full coverage of the Kennedy v. Louisiana oral argument, is here.

Missouri Legislation - UPDATED

Today's St. Louis Post-Dispatch carries an OpEd by Tammy Gwaltney, executive director of the Southeast Missouri Network Against Sexual Violence, "Proposed bill would hurt abused children even more."

The Missouri Legislature is considering a bill, SB 1194, which would allow the death penalty for individuals who commit acts of forcible rape or sodomy of children under the age of 12. On the surface, this seems to be a logical response to the most heinous of acts perpetrated upon children, but further analysis will bring us to a very different conclusion.

As a child advocate and the director of a child advocacy center, I have seen more than 3,200 victims of sexual violence. I have learned to see the world through the eyes of children — children who are victims of sexual abuse. The world is a very different place for these kids than it is for you and me.

What is real for child abuse victims is that, most frequently, they know the people who abused them. This very fact creates numerous barriers to reporting the crime. The children often are threatened to stay quiet about the abuse and threatened with harm if they tell. If and when the abuse finally is disclosed, children often are pressured by family members to recant.

Now imagine the increased pressure to stay quiet if grandpa is going to face the death penalty. Imagine being a child and being told you are responsible for grandpa's death. Imagine spending 10 or 15 years in and out of court as a capital case progresses slowly through the judicial system. Imagine being a kid and all you want is for the abuse to stop and, by revealing what has been done to you, you now are being held accountable for the life-or-death fate of the person who abused you.

The St. Joseph News-Press reports, "Getting touch on predators."

Missouri Gov. Matt Blunt flew in Monday to talk about making the death penalty an option in cases of forcible rape and forcible sodomy when the victim is younger than 12 years old.

“The prospect of the ultimate punishment of death will serve as an effective deterrent against reprehensible and cruel assaults on children,” Mr. Blunt said at the Buchanan County Courthouse.

The governor is calling on Missouri’s elected representatives to send him legislation that would allow a prosecutor to seek the death penalty in cases of forcible rape and forcible sodomy when the victim is younger than 12 years of age. Mr. Blunt took note of a recent child rape case in Springfield, Mo., where a 36-year-old man has been charged with kidnapping and forcibly raping and sodomizing a 7-year-old girl, whom he left for dead in a burning house.

“Protecting our children is of paramount importance to Missouri families,” Gov. Blunt said, “and I have called for, fought for and signed some of the toughest laws in the nation relating to violent child predators.”

The Springfield News-Leader carries an OpEd by school superintendent Bill Wheeler, "Death penalty for child rapists is needed."

This legislation, according to Senator Goodman, "gives prosecutors the option of pursuing the death penalty for child rapists."

No legislation will provide complete protection for all children, however, it is my opinion that the threat of death for those who forcibly rape or sodomize a child will greatly reduce those acts in Missouri.

Earlier coverage of the Missouri legislation is here.  The Missouri General Assembly has this info on the bill.  The Jessica's Law index, with full coverage of the Kennedy v. Louisiana oral argument, is here.  Similar proposals have failed in other state legislatures this year.

Missouri Legislation

The Springfield News-Leader carries an editorial, "Execution of child rapists will not protect our children."

Greene County Prosecutor Darrell Moore cited some of the concerns listed above as he offered his opinions on the proposed law. He added he cannot understand why the move has been made to try to broaden Missouri's use of capital punishment at a time when questions of the constitutionality of a similar law are pending before the U.S. Supreme Court in a Louisiana case.

Should the court rule unfavorably toward expansion of the penalty in that case, work by Missouri's lawmakers will be moot.

If the legislature is doing more than just posturing with its talk of a death penalty for child rapists, lawmakers must first engage in serious, analytical discussion with those most directly affected: child advocates, prosecutors and police.

Viewed in simple terms, the question of being for or against punishment for those who would terrorize, hurt and seek callous pleasure from children is easy.

But this is far from a simple issue.

Those who deal with it judicially know that. Those who deal with it legislatively ought to know it, too.

Earlier coverage of the Missouri legislation is here.  The Missouri General Assembly has this info on the bill.  The Jessica's Law index, with full coverage of the Kennedy v. Louisiana oral argument, is here.

In Missouri

The Springfield News-Leader reports, "Death penalty for rape of a child a step closer."

A Senate committee passed a bill Monday granting judges and juries the power to sentence someone to death for forcibly raping or sodomizing a child younger than 12.

The senators briefly considered two separate amendments -- one requiring DNA evidence and the other making the death penalty only applicable for prior sexual offenders -- but decided against creating a litmus test for a death sentence.

The Senate Judiciary and Civil and Criminal Jurisprudence passed the bill by a 6-1 vote, with Democratic Sen. Jolie Justus of Jackson County casting the lone vote of opposition.

Gov. Matt Blunt, who stumped for the legislation earlier Monday in Springfield, called a violent sex crime against a child one of "the worst crimes that any criminal can commit."

And:

The Senate bill, introduced by Sen. Jack Goodman, R- Mount Vernon, would add the death penalty as an option, but also allow a sentence of life without parole for such convicts.

Criminals convicted of raping or sodomizing a child are currently required to spend a minimum 30 years in prison, after the General Assembly toughened penalties for those crimes in 2006.

And:

The Senate committee's passage of the bill Monday night came at a time of controversy regarding the death penalty itself.

Some lawmakers want to temporarily halt executions, which had already been on hold in Missouri until Wednesday, when the U.S. Supreme Court ruled Kentucky's lethal injection process does not constitute cruel and unusual punishment.

The Missouri Supreme Court has not yet set any execution dates in light of that ruling, but a House bill would put a three-year moratorium on executing inmates on death row while a study of the practice is conducted by a bipartisan commission.

Given the polarizing nature of the death penalty debate, Blunt conceded the Senate bill might face hurdles making it to his desk.

The lengthy article also discusses other pending legislation, the Children's Bill of Court Room Rights.

The St. Louis Post-Dispatch has, "Blunt renews call for execution of those who rape children."

Speaking outside the St. Louis County Courthouse, he urged the Legislature to apply capital punishment for forcible rape or forcible sodomy of someone under 12.

Aside from first-degree murder, Blunt said, these are "the worst crimes that can be committed," leaving physical and emotional scars on the innocent and defenseless.

He also took Monday's message to Cape Girardeau, Kansas City and Springfield.

The Post-Dispatch also has a blog post by reporter Jake Wagman, "Nixon, too, backs death penalty for child rapists."

Though he probably didn’t mention it today, Gov. Matt Blunt’s old sparring partner, Attorney General Jay Nixon, also backs the death penalty for child rapists.

Blunt, speaking at an afternoon news conference in Clayton, underscored, once again, his support for a bill that would make the aggravated rape of a minor a capital offense.

It’s a stance that Nixon, a Democrat now running for Blunt’s job, shares as well.

Nixon and Blunt have attached their name to separate briefs filed with the U.S. Supreme Court in a case involving a Louisiana man sentenced to death for raping his eight-year-old stepdaughter at their home near New Orleans.

The Missouri General Assembly has this info on the bill.  Earlier coverage of the Missouri legislation is here and here.  The Jessica's Law index, with full coverage of the Kennedy oral argument, is here.

In Missouri

Missouri Governor Matt Blunt is pushing his Jessica's Law proposal that would provide a death penalty option for non-homicidal child rape.

The St. Louis Post-Dispatch has, "Blunt: Child rapists deserve death penalty."

Emphasizing that the most heinous crimes deserve the harshest penalty, Gov. Matt Blunt said today that child rapists should be eligible for the death penalty under Missouri law.

The governor, speaking at an afternoon news conference outside the St. Louis County courthouse, urged the Missouri General Assembly to pass legislation that would add the sentence of death to forcible rape and forcible sodomy cases when the victim is younger than 12 years old.

MissouriNet.com has, "Governor to tour state to call for death penalty for sexual offenders who attack children."

Governor Matt Blunt (R-MO) is renewing his call for the state's worst sexual predators to be death penalty eligible. The Governor is asking the General Assembly to send him legislation that would allow prosecutors to seek the death penalty in cases of forcible rape and forcible sodomy when the victim is younger than 12-years of age.

In issuing his call, Blunt noted a recent child rape case in Springfield where a 36-year-old man has been charged with kidnapping and forcibly raping and sodomizing a 7-year-old girl and leaving her for dead in a burning house. Blunt strongly believes death should be an optional penalty for child rape.

Currently Louisiana, Montana, Oklahoma, South Carolina and Texas have laws that allow capital punishment for a violent offender convicted of child rape. Alabama, Colorado, Mississippi and Tennessee also are considering similar laws.

Legislative progress was a key issue in last week's oral argument in Kennedy v. Louisiana, however, so far none of the states that has considered a non-homicidal death penalty in 2008 has passed the provision .   Last year, only Oklahoma and Texas -- two active death penalty states -- passed the law. 

The Jessica's Law index, with full coverage of the Kennedy oral argument, is here.

Kennedy Commentary at Bloomberg

Bloomberg columnist Ann Woolner writes, "To Help Raped Children, Don't Give Rapists Death."  Here's an extended excerpt:

Social workers who counsel raped children and nonprofit groups devoted to combating sexual assault say states do victims more harm than good when they allow capital punishment for child rape.    

For one thing, the law encourages the rapist to kill the victim, as he would have little to lose and might get away with the crime by killing the only witness to it.    

So argues a friend-of-the-court brief filed by the National Association of Social Workers, the National Alliance to End Sexual Violence and related organizations.    

``What's the incentive to keep the victim alive?'' asks Judy Benitez, executive director of the Louisiana Foundation Against Sexual Assault.    

If the victim survives, reports the crime and the accused goes to trial, ``Louisiana's law would greatly magnify the trauma that child victims already experience while participating in the criminal justice process,'' the social workers say in their brief.    

A death penalty case brings more publicity, more pretrial hearings, more post-trial hearings and years and years of appeals, thus requiring the child to relive the trauma time and again and delaying healing.    

Nor is healing helped along by the guilt that can come with putting your father, your stepfather, your mama's boyfriend, your teacher or your minister on death row.    

But the biggest concern is that a law like this makes the already serious problem of underreporting even worse.    

``Victims are inhibited from coming forward out of shame, guilt, fear of being punished and fear that the abuser will retaliate against the victim or other family members,'' the brief says. Underreporting is most common when the abuser is a relative, family friend or otherwise close to the victim, as is the case in 70 percent of child sexual abuse cases.    

So anywhere from 67 percent to 90 percent of child sexual abuse goes unreported, according to multiple studies over the past decade, as cited by the brief.    

``Often the victim has ambivalent feelings toward the offender,'' Benitez says. ``They want the sexual abuse to stop, but very often they don't want the offender to go to jail, much less get the death penalty.''

Earlier coverage of Kennedy v. Louisiana is here.  The Jessica's law index is here. More on Coker v. Georgia, the 1977 U.S. Supreme Court that ruled the death penalty an unconstitutional punishment for non-homicidal rape of an adult, is here.    

Lawsuits Test Crackdown on Sex Criminals

That's the title of the latest criminal justice report from Stateline.org.  It's written by John Gramlich and includes several paragraphs on Kennedy v. Louisiana.  LINK

A death-penalty case argued before the U.S. Supreme Court this week marks the latest constitutional challenge to an ongoing, nationwide crackdown on sex criminals.

From California to North Carolina, a flood of litigation has accompanied an expansion in the scope and severity of penalties imposed by local, state and federal lawmakers on those who commit sex crimes.

Penalties for molesters and other sex criminals have toughened considerably in recent years and now include execution in at least five states, chemical castration in eight states and the use of technology to monitor offenders’ every move in more than half the states.

In some instances, punitive measures are limited only by lawmakers’ imaginations. In Louisiana, for example, a proposal being debated this legislative session would forbid offenders from wearing masks on Halloween or Mardi Gras. In New Jersey, a new state law prevents molesters and others from surfing the Internet unless it is for work-related purposes; Florida and Nevada have similar laws.

And:

A broad spectrum of critics — including civil-rights organizations such as the American Civil Liberties Union and Human Rights Watch, law enforcers, prosecuting attorneys and even some victims’ assistance groups — has criticized some of the recent local, state and federal laws aimed at sex criminals.

Many say the laws are more about political opportunism than public safety. Elected officials recognize that they can appeal to voters by piling up penalties on a widely detested criminal population that has few advocates willing to stand up for its rights, critics say.

“It’s still an easy, no-lose-politically situation,” said Corey Rayburn Yung, a professor at John Marshall Law School in Chicago and author of a weblog, Sex Crimes, that reports on trends in sex-offender legislation.

The Jessica's Law index is here.

Coverage of the Kennedy Oral Argument

FindLaw.com columnist Marci Hamilton writes, "The Supreme Court Considers Whether Imposing the Death Penalty for Child Rape Is Constitutional: The Arguments For and Against the Penalty."

Opponents of the death penalty for child rape have argued that it is a bad idea, because it will deter reporting of the crime, given the severity of the punishment. That seems far-fetched, however. To the contrary, you might get more reporting if the victim thinks that the predator, if convicted, truly will no longer be able to inflict abuse on them. The same result would follow, however, if the justice system reliably put away known child abusers instead of cycling them back into society. Thus, the death penalty and life sentences have the capacity to motivate victims to report in order to remove the predator from their lives. (To be sure, survivors of child sex abuse face many hurdles to reporting, which may not be affected in any way whatsoever by the potential penalty.)

In sum, whether or not the Court upholds the death penalty for child abusers this Term, the entrenched barriers to identifying predators will not be eliminated, or even reduced. For that reason, from the perspective of the child being abused today or the survivor trying to cope in the wake of abuse decades ago, the case is a lot of hype - a paper battle that distracts from the far more essential battle for the reforms that are truly necessary if justice and decency are to be served.

McClatchy Newspapers' Michael Doyle writes, "High court weighs death for child rape," via the Fort Worth Star-Telegram.

In a 1977 decision out of Georgia, the Supreme Court struck down the death penalty for a man who had been convicted of raping a 16-year-old girl. She was deemed an adult. The question now is whether this precedent extends to cases involving the rape of a child.

Texas and Louisiana are among five states that permit child rapists to be executed. Missouri and other states have been debating adopting similar punishments, and law-and-order advocates contend that there's a push toward expanding the death penalty.

"The trend ... has been more and more states are passing statutes imposing the death penalty in situations that do not result in death," Chief Justice John Roberts said.

This could prove to be the key to the latest case.

Kennedy's attorneys argue that the death penalty violates the Eighth Amendment's ban on "cruel and unusual punishment," because it's disproportionately harsh for a nonfatal crime. In recent years, for instance, the court has cited laws passed by states and other countries in striking down the death penalty for juveniles.

On Wednesday, Roberts and Justice Antonin Scalia said that standards were moving in the direction of tougher punishment for those who harmed children.

"It's the trend that counts," Scalia said.

Kennedy's attorneys, and death penalty skeptics more generally, counter that there can be no general consensus when only two men have been sentenced to death for child rape in the past 13 years. The other condemned inmate, imprisoned with Kennedy in Louisiana, was convicted of raping a 5-year-old girl.

No one has been executed solely for the crime of rape in the United States in the past 43 years, Kennedy's attorney Jeffrey Fisher, a Stanford Law School professor, told the court.

This is excerpted from Linda Greenhouse's report on the Baze decision:

Immediately after announcing the lethal injection decision on Wednesday, the court turned to the argument in the Louisiana case on the constitutionality of the death penalty for raping a child.

It has been 43 years since anyone has been executed in the United States for rape. In 1977, with 30 men on death row for rape, the court ruled in a Georgia case that the Eighth Amendment prohibited the death penalty for that crime. The victim in that case, Coker v. Georgia, was a 16-year-old married woman who was referred to as an adult throughout the opinion.

While the question presented to the court in the Coker case did not differentiate between adults and children, the decision for years was widely interpreted as barring capital punishment for any rape. Nonetheless, Louisiana enacted its law in 1995, and several other states followed suit, for a current total of five that permit the death penalty for the rape of a child.

The justices’ questions from the bench indicated that most saw the Coker decision as limited to adult victims, with the issue of whether death could be imposed for raping a child still an open one, not governed by precedent. Patrick Kennedy, the defendant in this case, Kennedy v. Louisiana, No. 07-343, was convicted of raping his 8-year-old step-daughter.

Only in Louisiana could he have received the death penalty, because the other states, Montana, Oklahoma, South Carolina and Texas, apply their laws only to those with prior convictions. Mr. Kennedy’s lawyer, Jeffrey L. Fisher, argued that this demonstrated a “national consensus” against the penalty, at least for a first-time offender.

The New Orleans Times-Picayune has, "Supreme Court debates execution in child rape case."

Members of the U.S. Supreme Court's conservative wing Wednesday vigorously defended Louisiana's toughest-in-the-nation law allowing the death penalty for those who rape children.

The death sentence imposed on Patrick Kennedy, 44, of Harvey, would bring the first execution in the United States since 1964 of someone for any crime other than murder and presents the court with the chance to settle long-simmering questions about just how far capital punishment should reach.

Louisiana is one of five states to allow the death penalty in child rape cases. Unlike the others, however, juries in Louisiana can impose death on first-time offenders.

And:

Justice Stephen Breyer took the lead in challenging Louisiana's statute, which was upheld last year by the state Supreme Court. Breyer said that allowing the execution of child rapists would prompt state legislatures to extend the application of capital punishment to all manner of crimes.

"I'm not a moralist. I'm a judge. As a judge, I look at the law. It seems for 43 years no one has been executed but for murder," Breyer said. "If I accept your argument, have I then opened the door so that states will find lots of different crimes which are seriously horrible?"

Earlier coverage of Kennedy v. Louisiana is here and here.  The Jessica's law index is here. More on Coker v. Georgia, the 1977 U.S. Supreme Court that ruled the death penalty an unconstitutional punishment for non-homicidal rape of an adult, is here.

Initial Coverage of Kennedy Oral Argument

"Seemingly divided court considers death penalty for child rapists," is Pete Yost's report for AP.

Kennedy's lawyers say more states have rejected the death penalty for child rapists and that the reasoning of the court's 1977 decision — that death is an excessive penalty for a rapist who does not also kill — should apply even when the victim is a child.

Groups that work to prevent sexual violence also have sided with Kennedy. They say victims often know their attacker — a relative or family friend — and that more rapes will go unreported if children have to worry that their words might lead to an execution.

The other inmate, Richard Davis, was sentenced to death in the Shreveport area in December. He has just begun appealing his conviction and sentence.

Lyle Denniston has, "Analysis: Limit may be imposed on death penalty for child rape," at SCOTUS Blog.  Here's the beginning of his must-read coverage:

When the Supreme Court debates and then casts its first votes in private on Friday in the case testing the constitutionality of the death penalty for the crime of raping a child, the key points at issue may well be the meaning of a 1977 decision (Coker v. Georgia), and the uniqueness of the Louisiana law and, especially, its apparent lack of limits on its reach.  Those were the obvious highlights of the 64-minute hearing the Justices held in Kennedy v. Louisiana. A further point of seeming importance: Justice Anthony M. Kennedy, perhaps once again holding the decisive vote, spent considerable effort looking for ways to allow a death sentence for child rape, but only in narrow, strictly confined circumstances.

The hearing moved back and forth between pondering the scope of Coker — a case in which only a plurality of four Justices spoke directly on the principal conclusion — and weighing the sweeping nature of the Louisiana law at issue.  The Court appeared less interested in whether the nation’s state legislatures were embarked on a trend to imitate — or not – Louisiana; in other words, the question of whether a trend is running against, or in favor of, executing a rapist whose victim is a child.  These impressions suggested that the challengers to Louisiana’s law had better success with their backup argument than with their primary claim.

At the opening of the argument by Stanford law professor Jeffrey L. Fisher, representing death-row inmate Patrick Kennedy, he summarized his two points: first, that there is a “national consensus” against executing those who commit child rape, and, second, Louisiana alone does not limit who among child rapists would actually be eligible for the death penalty — that is, that state’s law lacks a narrowing factor.

Previews and earlier coverage are here and here.  The Jessica's Law index is here.  More on Coker v. Georgia, the 1977 U.S. Supreme Court that ruled the death penalty an unconstitutional punishment for non-homicidal rape of an adult, is here.  The SCOTUSwiki page for Kennedy v. Louisiana is here.

Kennedy v. Louisiana Previews

Kennedy v. Louisiana is being argued at the Supreme Court at this time.  The transcript should be posted here later today.

Let's begin with editorial press.  The New York Times has, "The Limits of the Death Penalty."

Since it reinstated capital punishment, the court has held that the Eighth Amendment’s bar on cruel and unusual punishment prohibits applying it to some defendants, such as the mentally retarded, and to certain crimes. In a 1977 case involving the rape of an adult, Coker v. Georgia, the court said “the death penalty, which is unique in its severity and irrevocability, is an excessive penalty for the rapist who, as such, does not take human life.”

Since then, the court has repeatedly interpreted Coker as holding that the death penalty cannot be applied in cases of person-on-person violence other than murder or reckless disregard for life. It has barred it for kidnapping and for some accomplices to murder. (The applicability of the death penalty to mass crimes like espionage and treason is a separate question.)

Louisiana thought it saw an opening in Coker, however, in cases of child rape, which the decision did not expressly mention. The state passed a law making rape of a victim younger than 12 punishable by death.

We believe capital punishment is always wrong and unconstitutional, but there are more specific reasons not to affirm Mr. Kennedy’s sentence. If it did so, the court would be overturning its own well-settled precedents. It would also be rejecting a nearly national consensus. Louisiana is one of just a handful of states that punish child rape with death, and the only one that does so for first-time criminals. No other Western nations do that, and the few countries that do — including Saudi Arabia and Egypt — are not ones to emulate.

If the court allows the death penalty for child rape, it would be opening the door for the same punishment to be extended to other crimes. That would be wrong, particularly now, when the growing number of cases of innocent people being freed from death row is turning popular opinion against capital punishment. The court should reverse Mr. Kennedy’s unconstitutional sentence.

Today's Washington Post has, "A Crime and its punishment."

As a matter of policy and conscience, we have long opposed capital punishment, even for murder. To allow capital punishment for a crime that stops short of murder would only open the door for an even broader application of the death penalty, with no clear delineation. And while a few states in recent years have passed capital punishment laws for cases of child rape, the absence of such laws in the vast majority of states suggests that the nation as a whole condemns the application of the death penalty for anything other than murder, suggesting that Louisiana's law is not in sync with the court's "evolving standards of decency."

A compelling argument against applying the death penalty to cases of child rape is made in a friend-of-the-court brief filed by a coalition of social workers and interest groups that work on behalf of victims of sexual abuse. The coalition argues convincingly that the already gross underreporting of child sexual abuse might only be exacerbated if the death penalty were imposed in such cases. In most such cases, the perpetrators are family members or acquaintances; children might be even more frightened to report a crime if they thought they'd be responsible for the death of someone they knew or even loved. Even if the child was brave enough to come forward, a family member with ties to the offender could prevent disclosure to law enforcement authorities. Life imprisonment without the possibility of parole is a better alternative to keep children beyond the reach of sexual psychopaths.

There are additional previews in the following newspapers:  The Christian Science Monitor has, "Should Child Rapists Face Death Penalty."

Louisiana is one of six states authorizing a death sentence for child rape. The others are Georgia, Montana, Oklahoma, South          Carolina, and Texas. Several other states are debating similar measures.       

Each side argues that its position is supported by a national consensus. Kennedy's lawyers say that only a handful of states with the death penalty authorize it for child rape, and that most states' rejection of it demonstrates a consensus that it is excessive.

Supporters of the Louisiana law counter that recently enacted child rape laws suggest the beginning of a trend toward a national          consensus that capital punishment is appropriate.       

As a fallback position, Kennedy's lawyers argue that even if a majority of justices rule that states can execute child rapists, the Louisiana law at issue must be struck down because it does not sufficiently ensure that only the worst child rapists will face execution.

In a series of rulings over the past 30 years, the high court has established a system of safeguards to prevent the arbitrary imposition of a death sentence. One of those suggests that state laws like Louisiana's must differentiate between child rapes that are deserving of the death penalty and those that are not.

AP reports, "Court meeting to weigh death penalty for child rapists."

The Austin American-Statesman reports, "Supreme Court to hear challenges to death penalty for child rapists."

David Bruck, a defense lawyer who has successfully argued six death penalty cases in the Supreme Court, said a decision that the Louisiana law is unconstitutional could also nullify the death penalty provision in what is known in Texas as Jessica's Law. That law, passed last year, permits the death penalty, or life in prison without parole, for the second conviction of aggravated sexual assault of a child younger than 14.

Lt. Gov. David Dewhurst said Monday that the Texas law was crafted to withstand a constitutional challenge and that it is substantially different from the Louisiana law, pointing out that in Texas, two convictions are required before the death penalty can be sought.

"In the unlikely event the Supreme Court rules the death penalty is unconstitutional," Dewhurst said, "Texas' law would remain in effect without the death penalty provision, allowing prosecutors to seek a life in prison without the possibility of parole."

Nobody has been sentenced to death under the Texas law.

The Dallas Morning News has, "U.S. Supreme Court to hear Texas argue death penalty for child rapists."

Texas says sometimes the sexual assault of a child can be so violent or obscene that the only appropriate punishment is to execute the offender.

    

And Wednesday, Texas Solicitor General Ted Cruz will make that case to the U.S. Supreme Court, arguing that state legislatures have the constitutional right to allow the death penalty for child rapists.

The case before the court, Kennedy vs. Louisiana, concerns a Louisiana law and the case of a Jefferson Parrish, La., man convicted of raping his 8-year-old stepdaughter. But striking down that law could call into question Texas’ 2007 “Jessica’s Law,” which allows the execution of certain repeat child sex offenders.

The Fort Worth Star-Telegram has, "Texas to defend law executing child rapists."

Annette Clay, executive director of the Texas Association Against Sexual Assault, doesn't think any punishment is too harsh for sexual predators who attack children. Still, she opposes the new Texas law.

Clay and others say that family members or close friends are responsible for most sexual assaults of children and that those assaults are already reported at a dismally low rate. The possibility that the attacker will be executed creates an even bigger disincentive, she said.

Strangers who raped would have no incentive to let their victims live, Clay added.

"I understand where they are coming from and I appreciate their motives, but where my concerns are is that the results will be very different from what they intended," Clay said.

And:

Six states allow for the execution of child rapists: Florida, Louisiana, Montana, Oklahoma, South Carolina and Texas.

Texas, South Carolina, Oklahoma and Montana allow the death penalty for child rape, but only for repeat offenders. In Texas, prosecutors can seek the death penalty or life without parole only after a second conviction of aggravated sexual assault of a child under 14.

In recent years, more than a dozen people wrongfully convicted of child rape have been exonerated.

Child sex abuse is one of the most underreported crimes. According to one study, 83 percent of female rape survivors under 18 do not report the abuse to authorities. Another study states that in the rapes of girls 12 or younger, 96 percent knew the rapist.

The Jessica's Law index is here.  More on Coker v. Georgia, the 1977 U.S. Supreme Court that ruled the death penalty an unconstitutional punishment for non-homicidal rape of an adult, is here.  The SCOTUSwiki page for Kennedy v. Louisiana is here.

Additional Kennedy Previews

Bloomberg's Greg Stohr reports,  "Child-Rape Case at Top Court May Let States Execute Non-Killers."

It has been 44 years since the last execution in the U.S. for rape or any other crime except murder. Whether that hiatus continues is now up to the Supreme Court.           

The justices will hear arguments tomorrow on behalf of Patrick Kennedy, who was sentenced to death in Louisiana for raping his 8-year-old stepdaughter. Kennedy's lawyers contend that his execution would violate the constitutional ban on ``cruel and unusual'' punishment.    

Louisiana is one of five states that explicitly permit the execution of people who rape a child. Kennedy, 44, and another Louisiana man convicted of child rape are the only people in the nation on death row for a non-homicide crime.    

``There's an overwhelming national consensus that the death penalty is inappropriate for any kind of rape,'' said Jeffrey Fisher, a Stanford Law School professor who will argue Kennedy's case before the justices.    

In upholding Kennedy's death sentence, the Louisiana Supreme Court called child rape ``the most heinous of all non-homicide crimes'' and said execution was an appropriate penalty.    

The outcome of the case will probably turn on whether the U.S. Supreme Court sees that view as sufficiently widespread. In previous disputes over cruel and unusual punishment, the court has asked whether a ``national consensus'' exists against the death penalty in certain circumstances.

AP has a dispatch, via Google news, from Louisiana, "Death Penalty for Child Rape Is Fought."

The last time someone in the U.S. was executed for something other than murder was in 1964, when a man went to the electric chair in Alabama for robbery. That same year, a man in Missouri went to the gas chamber in what was the last time someone in this country was put to death for rape.

Louisiana is the only state with someone on death row for rape of an adult or child. In fact, it has two people awaiting execution for child rape. At least five other states — Georgia, Montana, Oklahoma, South Carolina and Texas — have similar laws.

"These are the only two men on any death row in any Western democracy for this offense," said Billy Sothern, a lawyer with the Capital Appeals Project, a nonprofit law firm that represents the Louisiana man at the center of the Supreme Court case, Patrick Kennedy.

Kennedy, a 43-year-old man with an IQ of 70, was convicted and sentenced to death for raping his 8-year-old stepdaughter in 1998 in Harvey, a New Orleans suburb.

The Louisiana law — which applies to anyone found guilty of aggravated rape of a child 12 or younger — breezed through the state Legislature in 1995; members got sidetracked only over whether to castrate child rapists.

"That's one of my proudest pieces of legislation," said former state Rep. Pete Schneider, a Slidell brick manufacturer and Republican.

The other man on death row in Louisiana for child rape is Richard Davis, convicted of repeatedly attacking a 5-year-old girl he looked after with his girlfriend in 2004 and 2005. The man who prosecuted him, Brady O'Callaghan, said child rape deserves the death penalty.

"It is so evil. There is no justification for it," he said. "This isn't a heat-of-passion killing. It's not about money."

Opponents, including the National Association of Social Workers and the National Alliance to End Sexual Violence, warn that the prospect of the death penalty could give child rapists a powerful incentive to kill their victims. They might figure they have nothing to lose by killing the lone witness.

Also, child advocates warn that children, in many cases, are raped by people they know, and executing a relative could traumatize a youngster. Also, the law might make it harder to prosecute such cases by making children afraid to speak up for fear of what might happen to a relative, said Dr. Scott Benton, a pediatric forensic physician.

The debate has flared anew in Slidell, where 41-year-old janitor Dino Jay Schwertz was accused last month of child rape. Police say he confessed to the crimes.

Our coverage of other previews, with links to earlier coverage, is here.  The Jessica's Law index is here.  More on Coker v. Georgia, the 1977 U.S. Supreme Court that ruled the death penalty an unconstitutional punishment for non-homicidal rape of an adult, is here.  The SCOTUSwiki page for Kennedy v. Louisiana is here.

Editorial Response in Alaska

The Anchorage Daily News carries the editorial today, "Death penalty? Alaska doesn't need it."

Nikiski state Rep. Mike Chenault served notice on his colleagues last week: Next session, he will push to reinstate the death penalty in Alaska.

If he does, it will be a distraction the next Legislature doesn't need. Legislators have only 90 days to do their work each session, so they don't have time for tough-on-crime posturing. Over the years, Alaska legislators have shrugged off similar calls to reinstate the death penalty, and for good reason.

The death penalty is state-sanctioned, premeditated revenge killing. It is the kind of barbaric "justice" practiced in countries like Kazakhstan, Saudi Arabia and Zimbabwe.

Besides, to an offender sentenced to life imprisonment without parole, the burden of knowing you will live your entire life in prison can be a fate worse than death.

Like all human institutions, the justice system is imperfect. Sometimes innocent people are sentenced to die. According to the Death Penalty Information Center, 128 inmates who were exonerated or didn't get fair trials have been freed from death row since 1973, when legal executions resumed in the U.S. With the death penalty, the chance of irreversible error is too high.

Back in 2003, during a local anti-death penalty event, Florence Ward offered Alaskans a healthy perspective on the subject. Her niece was one of four youths killed by Charles Meach in Russian Jack Springs Park in 1982. Ward said Meach fully deserved his 396-year prison sentence, but she didn't want to see him put to death.

"I just think there's so many inequities in it," Ward said. "I personally couldn't do it, and I'm not about to ask anyone to do it."

Earlier coverage is here.

Additional Previews of Kennedy v. Louisana

Oral argument in Kennedy v. Louisiana is scheduled for Wednesday morning.  In today's Washington Post, Robert Barnes reports, "Child Rape Tests Limit of Death Penalty."

Ever since the Supreme Court reinstated the death penalty more than 30 years ago, justices have been finding ways to limit it.

In the intervening years, they have employed their interpretations of society's "evolving standards of decency" to remove juvenile and mentally retarded killers from death row.

Before that, they excluded kidnappers who did not kill and even some accomplices to murder. In 1977 the court also concluded that a state could not execute a man who raped an adult woman.

But on Wednesday the court will consider whether a person who rapes a child is different. Louisiana prosecutors will argue that the same societal mores that have persuaded justices to spare certain categories of criminals lead in the opposite direction when it comes to child rapists, demanding an expansion of capital punishment, not a retrenchment.

Proponents say society demands retribution for those who harm its most vulnerable members. But some child advocacy experts say the unintended consequences of the death penalty might be a decline in the reporting of sexual assaults by family members, or even an incentive for the rapist to kill the victim.

The argument comes as the court has imposed a de facto moratorium on capital punishment while justices decide in a separate case whether the current methods of lethal injection are constitutional.

Even as the number of death sentences imposed in the United States has fallen -- there were the fewest last year since capital punishment was reinstated in 1976 -- Louisiana and a handful of other states have changed their laws to allow executions for those who rape children. They are supported by additional states that say they might want to do so in the future.

"The 'evolving standards of decency' framework is not a one-way street that may lead only towards the elimination of the death penalty," the state of Texas argues in a brief joined by eight other states. "Each state's legislature should be allowed to . . . reflect its citizens' current moral judgment regarding the just deserts for certain capital crimes."

Of the 3,300 inmates on death row across the country, only two are there for a crime other than murder. Both were convicted under Louisiana's child rape statute, passed in 1995 and still the broadest in the land.

The Post also has two sidebars, "An Evolving View of Capital Punishment, " and the graphic, "The Ultimate Punishment."

James Oliphant writes, "Is death fitting in rape of child?"

The state of Louisiana says Patrick Kennedy raped his stepdaughter. The question now is whether he should die for it.

The answer has consequences for the nation's criminal justice system. If the U.S. Supreme Court allows Louisiana to execute Kennedy, he would be the first person in America put to death in almost half a century for a crime that didn't involve taking the life of another person.

Kennedy was convicted in 2003 of assaulting his 8-year-old stepdaughter and sentenced to death. Louisiana is one of a handful of states that have made the rape of a child a capital crime. His challenge to that law comes before the high court this week.

Kennedy's lawyers argue that the law is a violation of the Constitution's 8th Amendment, which forbids cruel and unusual punishment.

While the law that will guide the court's decision is modern, the justices' inspiration reaches back beyond the Bible. The concept of "an eye for an eye" was written in Exodus and, before that, by the ancient Babylonian ruler Hammurabi. Accordingly, the justices will have to decide whether Kennedy's sentence is "proportionate" to his crime.

For four decades, absent such high crimes against the nation as treason, American law has mostly drawn a line when it comes to the death penalty: Only death warranted death. Any lesser crime, even rape, invited a lesser punishment.

Now the justices may be poised to rewrite that rule, potentially opening a series of questions about what other offenses merit the ultimate, irrevocable penalty, and perhaps inviting states to broaden the class of residents on Death Row.

"I think it would be an enormous move," said Corey Rayburn Yung, a professor at John Marshall Law School in Chicago. "It would open the door for all kinds [of new capital crimes]."

More than simply challenging the Louisiana law, Kennedy and his lawyers argue that he was wrongfully convicted, that two neighborhood boys committed the crime. However, the question of his guilt won't be addressed by the justices when they hear the case Wednesday.

"U.S. top court to hear La. child rape case," is Paul Purpura's article in the New Orleans Times-Picayune.

Legal experts say a ruling would clarify a 1977 U.S. Supreme Court decision, Coker v. Georgia, which banned the death penalty for rape of an adult.

"We're basically just saying the United States Supreme Court should follow Coker," said Billy Sothern of the Capital Appeals Project in New Orleans, which represents Kennedy.

The case is not expected to have widespread impact on whether death is the appropriate punishment for offenses in which victims do not die. Only two men are on death row for raping children, both in Louisiana. Four other states have similar laws.

"Obviously, if the Supreme Court says that the death penalty is a disproportionate punishment for the crime of a rape of a child, then that would invalidate the Louisiana statute and it would invalidate the statutes in several other states," said John Blume, a Cornell University law professor and director of the Cornell Death Penalty Project. "It would shut the door on that issue, which many people thought had been shut in Coker v. Georgia."

Until December, Kennedy, 43, was the only person out of more than 3,300 nationwide who was on death row for rape. He was convicted in 2003 of raping an 8-year-old relative in the Woodmere subdivision March 2, 1998.

Hearst News Service has, "Justices to rule if child rape can merit execution," via the Houston Chronicle.  It's written by Jennifer Dlouhy.

There are more than 3,300 people on death row in the United States — but only two of them await execution for crimes that didn't involve murder.

This week, the Supreme Court will consider the case of one of them, Patrick Kennedy, a Louisiana man convicted of raping his 8-year-old step-daughter.

The case comes before the nation's highest court at a time when the justices are becoming increasingly skeptical about the death penalty and willing to curb its use.

Texas and eight other states have intervened in Kennedy's case to urge the Supreme Court to allow the death penalty for child rape. Texas Solicitor General Ted Cruz, who leads the group, will appear before the justices Wednesday to press the views for those states.

An earlier preview by Joan Biskupic is here.  The Jessica's Law index is here.  More on Coker v. Georgia, the 1977 U.S. Supreme Court that ruled the death penalty an unconstitutional punishment for non-homicidal rape of an adult, is here.

Colorado Legislators Reject Jessica's Law Proposal

The Denver Post carries an AP report, "Lawmakers reject death penalty for child sex abusers."  The bill had not been expected to pass, as noted in this post from April 3.

Colorado lawmakers have rejected a bill that would have allowed the execution of people who sexually assault children younger than age 13.

The Senate Appropriations Committee voted 6-4 today against the Senate Bill 195, which would have cost about $616,000 next year for trials, appeals, public defenders and prison costs.

Democratic Sen. Moe Keller of Wheat Ridge says social workers are worried that family members who rape children could intimidate their victims by saying the abuser would be killed if the victim tells.

Earlier coverage of the Colorado legislation is here.  This Wednesday, the U.S. Supreme Court hears oral arguments in Kennedy v. Louisiana, which raises the constitutionality of the death penalty for the non-homicidal rape of a child.  Earlier coverage of the case is here.   

The Louisiana law pre-dates Jessica's Law death penalty provisions, sparked by the death and murder of a child in Florida.  The JML Foundation says that 33 states have passed some form of Jessica's Law.  Only those in Florida, Oklahoma, South Carolina, and Texas contain a possible death penalty for non-homicidal child rape.  In addition to Louisiana, Montana also has a similar provisions that pre-date the Jessica's Law proposals.  Only two men in America are have been sentenced to death for non-homicidal rape of a child; both in Louisiana.

The Jessica's Law index is here.  More on Coker v. Georgia, the 1977 U.S. Supreme Court that ruled the death penalty an unconstitutional punishment for non-homicidal rape of an adult, is here.

Alaskan Legislator Calls for Death Penalty

"Lawmaker says state needs death penalty," is the headline in the Anchorage Daily News. 

House Finance Committee Co-Chairman Mike Chenault brought up the issue in committee Monday during discussion of a bill to require sex offenders to register their e-mail addresses with the state.

He proposed an amendment to authorize capital punishment for certain crimes against children, then withdrew the amendment after a short debate.

Chenault said he wanted to surprise the bill sponsor, freshman Democrat Bill Wielechowski of Anchorage.

But he said he also intends to bring forward death penalty legislation next year, if he's elected to a fifth term.

And:

The Territory of Alaska abolished capital punishment in 1957.

The last people executed in Alaska were two men who were convicted separately in the same crime. Austin Nelson and Eugene LaMoore were convicted of the December 1946 murder of Juneau shopkeeper Jim Ellen. Ellen's store was also robbed.

The two men were executed by hanging, Nelson on July 1, 1947, and LaMoore on March 1, 1948.

Attorney Avril Lerman of Anchorage researched the history of the death penalty in Alaska in a report for the Judicial Center at the University of Alaska Anchorage. Lerman said questions were later raised about LaMoore's conviction. She said the questions likely contributed to the abolition of the death penalty.

"It was an illustration of the extent to which human beings are human in too many ways to wield that sword," Lerman said.

Preview of Kennedy v. Louisiana

Oral argument for Kennedy v. Louisiana is set for April 16.  Joan Biskupic has a preview in today's USA Today.  LINK

The Supreme Court will weigh the constitutionality of the death penalty for child rape next week, in the case of a Louisiana man convicted of raping his 8-year-old stepdaughter.
The dispute, closely followed by state officials, social workers and defendants' rights groups, marks the first time since 1977 that the justices will consider whether rape can be punished by death. The justices said no in the case three decades ago, involving a 16-year-old married woman whom the court referred to as an adult.

Several states, including Missouri, have signaled that if the court permits the death penalty for child rape in Louisiana, they may try to enact such laws. Five states already plainly allow capital punishment for raping young children. Social workers warn that if the court sanctions the penalty for child rape, it could further discourage reporting of the crime because in the majority of child sexual assaults, the attacker is a relative or friend of the victim.

The dispute the justices will hear next Wednesday arises as prosecutors nationwide are obtaining significantly fewer death sentences annually than a decade ago. A de facto moratorium on capital punishment is also in place while the Supreme Court considers a separate dispute over lethal injection.

Louisiana argues that national outrage over sex crimes against children, along with efforts by some states to make rape a death penalty offense, should lead the court to uphold a Louisiana death sentence for Patrick Kennedy.

The trend, asserts Juliet Clark, assistant Jefferson Parish district attorney, "strongly supports imposition of the death penalty for this exceedingly grave offense."

Kennedy's lawyer counters that there are signs that society believes death is excessive for rape, including that no one in America has been executed for any rape in more than 43 years. "Although rape is a very serious crime," attorney Jeffrey Fisher says, "no rapist should be punished more severely than the average … murderer, who by definition is not subject to capital punishment." The death penalty has traditionally been reserved for the worst of society's criminals.

The justices' view of such societal trends will matter in Kennedy v. Louisiana, because the court looks for evidence of a national consensus when deciding whether a sentence violates notions of decency embodied in the Eighth Amendment ban on cruel and unusual punishment.

And:

Texas Solicitor General Ted Cruz, who will argue on behalf of nine other states supporting Louisiana's position, says, "The Constitution permits democratically elected legislatures to choose to allow the most serious punishment for the very worst child rapists."

The states that have signed Cruz's brief are Texas, Alabama, Colorado, Idaho, Mississippi, Missouri, Oklahoma, South Carolina and Washington.

Among the groups siding with Kennedy, who is African-American, are the American Civil Liberties Union, which emphasizes the South's history of executing blacks for rape more often than whites, and the National Association of Social Workers.

Joining the social worker group, Judy Benitez, director of the Louisiana Foundation against Sexual Assault, said most sexual abuse is committed by victims' relatives or friends. "This can lead to ambivalence on the part of the victim and her family about reporting the abuse," Benitez said. "We believe that if the specter of the death penalty is out there, it will lead to more underreporting. The victim might think, 'I wanted the abuse to stop, but I didn't want him to die.' "

Earlier coverage of Kennedy v. Louisiana is here.  The Jessica's Law index is here.  More on Coker v. Georgia is here.

Colorado Legislation

The Colorado Springs Gazette reports on the legislature budgeting process, "Ritter office says proposed GOP cuts bad timing."

Approval of the state budget for the fiscal year beginning July 1, a process the Senate took up this week, means many programs will have extra funding assured. But because the Joint Budget Committee allocated only $2 million for bills that have yet to pass out of the Legislature this year, several hundred measures are competing for a relatively small pot of cash. Many sponsors are resigned, in fact, to see bills that passed out of other committees die at the hands of the House or Senate appropriations committees, the purse keepers of the General Assembly.

And it notes that one of the bills likely to die because of lack of funding is:

• Senate Bill 195, the effort to make people convicted of sexually assaulting a child under the age of 12 eligible for the death penalty.

Earlier coverage of Colorado legislative activity is here and here.

If You Do the Crime, You Do the Time

That's the title of an OpEd in the Summit (CO) Daily News by retired police officer Gary Lindstrom.

Last week I read a headline that said, “Senate committee approves death penalty for sex assaults on kids.” The senate committee said in effect that anyone who sexually assaults a child under the age of 12 should be executed. I think that the committee that passed that bill needs to rethink what they did.

I was a police officer for most of the time from 1964 to 1995. I will assure the committee and anyone else that the seriousness of the sentence has little or no impact on whether or not a criminal will commit a crime. They just never think about it. If it were true then there would be very few crimes committed.

I worked in the Fifth Judicial District Office of the District Attorney in 1976, 1977 and 1978. Even the district attorney at the time did not know what the sentence was for any particular crime. The DA, his deputies, the complaint clerk and I as chief investigator did not know the penalty was for any crime. We always had to look it up. I am sure that the judges do the same thing. I doubt if any criminal ever looks up the penalty for his or her crime before he or she commits the crime.

Yet there are some people who delude themselves into believing that criminals are deterred by a severe punishment for doing a crime.

Colorado does remain as one of 36 states with the death penalty. That is also a major waste of time and money. I am sure that in the remaining 14 states without the death penalty that their murder rates are not necessarily higher.

And:

In the case of the sick degenerate men and women who molest children under the age of 12 the correct response is to incarcerate them. Not in prison but in a mental health facility. They are the sickest of the sick people in this world and need to be removed from society but they will never change their behavior in prison. Prison will probably only make their behavior worse.

The OpEd originally appeared on March 16.  Thanks to a loyal reader for forwarding.

Missouri Governor Files Amicus in Kennedy v. Louisiana

The Kansas City Star's Prime Buzz blog reports, "Blunt files SCOTUS brief favoring death penalty for child rapists."

Missouri Gov. Matt Blunt today filed a brief with the U.S. Supreme Court supporting the death penalty for child rapists.

The amici curiae, or “friends of the court” brief supports the state of Louisiana, which is defending before the court a law authorizing the death penalty for offenders who rape children under the age of 12.

Blunt proposed a similar law for Missouri last December and bills have been introduced in both houses to do so, although neither has been heard in committee.

Opponents argue such laws only encourage child rapists to kill their victims.

The brief references the case of Michael Devlin, the suburban St. Louis man who kidnapped two boys — one for more than four years — and repeatedly sexually abused them before being caught early last year. Devlin has since been sentenced to prison for 170 years and 74 life sentences.

The brief goes on to argue that the court “should not foreclose a national debate on appropriate punishment for child rape” and that discussion at the state level is the best way to determine the national consensus on the issue.

Blunt’s brief is also signed by 28 state lawmakers, including Kansas City-area Republicans Sen. Luann Ridgeway and Reps. Jason Brown and Tim Flook.

The St. Louis Post-Dispatch has, "Blunt weighs in on case that could impact 'Devlin's Law',"
reported by Jake Wagman.

Gov. Matt Blunt has entered the debate in a U.S. Supreme Court case that could decide whether the next Michael Devlin gets the death penalty.

Blunt’s office announced today it has filed an amicus brief in Kennedy v. Louisiana, the case of a man sentenced to death for raping his eight-year-old stepdaughter at their home near New Orleans.

The case would have broad implications around the U.S., and particularly in Missouri.

After Shawn Hornbeck and Ben Ownby were rescued from their captor last year, State Sen. John Loudon announced he was sponsoring legislation that would make the kidnapping and rape of a child a potentially capital offense.

At issue in Kennedy- and in Loudon’s “Devlin Law” - is a fundamental constitutional question: Does enforcing the death penalty for a crime other than murder violate the Eighth Amendment’s ban against “cruel and unusual punishment?”

The Louisiana Supreme Court believes it doesn’t, saying in its lower-court ruling that “if the court is going to exercise its independent judgment to validate the death penalty for any non-homicide crime, it is going to be child rape.”

Blunt, essentially, makes the same argument in a press release today.

“Violent sex offenses against children are unspeakable crimes, crimes so horrific that they defy comprehension and demand harsh punishment,” Blunt said. “Crimes like these deserve the most serious punishment we can possibly deliver.”

The opposition will most likely rely on an earlier decision, Coker v. Georgia, which said that while rape is a heinous crime, only murder meets the criteria for the state’s highest penalty.

Oral arguments in the Kennedy case are scheduled for next month. It’s unclear how the timing of the case will effect the bill in Jefferson City.

Earlier coverage of the Missouri proposal is here.  The Jessica's Law index is here.  More on Kennedy v. Louisiana, via SCOTUSwiki; More on Coker v. Georgia, via Oyez.

Death Penalty for Rape Doesn't Protect Children

That's the title of an editorial in today's Denver Post concerning a death penalty bill Colorado legislators are considering.  LINK

A bill pending in the Colorado Senate that would authorize a death sentence on a second conviction of raping a child could backfire by giving some of society's most vicious criminals a perverse incentive to kill their victims.

Senate Bill 195 by Sen. Steve Ward, R-Littleton, would authorize the death penalty for people who sexually assault a child 12 years or younger if DNA evidence links them to the crime.

Ward's bill also could discourage victims from reporting abuse by relatives, fearing they'd get the death penalty.

The Senate Judiciary Committee amended the bill to allow the death penalty only for rapists previously convicted of a similar attack on a child. It then sent the bill to the Appropriations Committee, where it should receive a quiet burial.

The Post has historically opposed the death penalty. But even supporters of capital punishment have strong reasons to oppose this bill. First, it endangers the very children it is designed to protect. If the penalty for rape alone is death, then a criminal vicious enough to make such a heinous attack in the first place may reason that he faces no further penalty for killing the victim.

Granted, most rapists would not even think that far down the road, but why provide the incentive for those who might?

Whether or not the death penalty deters crime at all is a subject of endless debate. But what influence the law does have should always be aimed at shielding victims from even worse harm. Colorado law already allows a death penalty for a rapist who kills his victim. By executing for rape alone, Ward's bill strips victims of whatever protection they now receive under that law.

Ward's bill also violates one of the tenets of Judeo-Christian morality, the rule that punishment may be proportional to a crime but must not exceed it — an eye for an eye, a tooth for a tooth.

The notion that life can only be taken from those who have themselves taken life is so deeply embedded that the U.S. Supreme Court in 1977 ruled that states can only impose the death penalty for murder.

Despite that ruling, five states still have laws on the books like the one Ward wants to bring to Colorado, allowing execution for the rape of a child under age 12. But only one, Louisiana, is currently trying to execute a rapist, Patrick Kennedy, for such an offense. That case is now pending before the U.S. Supreme Court.

Earlier coverage of the Colorado legislation is here and here.  The Jessica's Law index is here.  More on Kennedy v. Louisiana is here; the SCOTUSwiki page is here.  More on the 1977 case of Coker v. Georgia, via Oyez, is here.

Colorado Legislation

The Denver Post reports, "Child rapists could face execution."

Colorado could put child rapists to death under a bill that won a Senate committee's approval Monday and would put the state on par with just five others that allow the execution of such sex offenders.

Prosecutors could try for the death penalty in cases in which rape victims are 12 or younger, where DNA evidence is present and where the perpetrator has been previously convicted of a sex offense against a child.

The harsher sentences might run afoul of the Constitution — the U.S. Supreme Court will weigh in on the issue this year — and could discourage victims from reporting abuse by relatives, according to critics, who include victims' rights advocates.

But some of the most terrible offenders simply deserve death, said sponsor Sen. Steve Ward, R-Littleton. He referred to a Louisiana man who raped his 8-year-old stepdaughter and became the first such offender in the nation to receive a death sentence.

"The crimes we're looking at are particularly heinous," Ward said. 

Colorado public defenders, who oppose the bill, originally estimated that it would make about 260 people a year eligible for the death penalty. It was unclear what an amendment, which limits the bill to repeat offenders, would do to that estimate.

In Louisiana, the one state that has sentenced child rapists to death, prosecutors have made capital cases of only two out of 180 eligible cases.

Constitutional challenges immediately followed the first of those two sentences, and the U.S. Supreme Court is expected to rule by June whether death is cruel and unusual punishment for felons who have not taken a life.

Senate Judiciary Committee members voted 5-2 to send Senate Bill 195 to the chamber's appropriations committee, which will weigh its as-yet-unknown price tag.

And:

Colorado sends child rapists and other serious sex offenders to prison for between four years and life, with the duration largely left to a judge's discretion.

Of the 1,200 people now incarcerated for the most serious sex crimes, only eight have received parole in the past decade, said Doug Wilson, Colorado's chief public defender.

Colorado joins Alabama, Missouri and Mississippi in seeking death for child rapists this year. 

Montana, Oklahoma and South Carolina have passed similar laws since 2006, and Louisiana and Texas both approved such legislation in the mid-1990s, said Richard Dieter, executive director of the Washington, D.C.-based Death Penalty Information Center.

The article notes that Colorado currently has one person on its death row, and that the state's last execution was more than 10 years ago.  The Jessica's Law index is here.

Colorado Legislation

As noted in a post last week, a Colorado state senator has introduced a proposal to make non-homicidal child rape punishable by death.  Fort Collins' KUSA-TV reports, "Lawmaker wants death penalty for child rape."

A Colorado lawmaker has introduced a bill that would make the death penalty available for anyone convicted of a violent sexual assault on a child.

Sen. Steve Ward (R-Littleton) says prosecutors need the tool to punish those who commit the worst of crimes against children younger than 12.

"It puts it into a new class of crimes and actually an important one," said Ward.

Ward is proposing capital punishment as an option on the first offense of violent sexual assault on a child under 12, but he says prosecutors may not use it and choose instead to apply it to repeat offenders.

"What Senate Bill 195 does is make this penalty available as a tool to the prosecutors to do their work," said Ward. "I think the death penalty is important to have available to prosecutors when you have crimes as heinous as these crimes can be."

Opponents say that in 1977, the U.S. Supreme Court ruled that states could not put people to death for rape cases because it was unconstitutional. They found it fell under the 8th Amendment as cruel and unusual punishment.

"The idea behind capital punishment is to execute those that commit the most heinous and atrocious murders, whether that's stabbing, shooting, bombs, whatever," said Doug Wilson, a public defender for Colorado. "It's not specifically set up - it never has been set up - for execution in cases where people are not killed. (That's) not saying it's not traumatic to the children, because it is, (and that's) not saying those folks should necessarily get out of prison if they're convicted."

And:

The bill will be heard by the Senate Judiciary Committee in April.

Four states already permit capital punishment for repeat child rapists: South Carolina, Oklahoma, Montana and Texas. However, no one has been sentenced to death under those laws. Louisiana has a similar statute and two people have been sentenced to death there. One is currently appealing the decision to the Supreme Court and his arguments will be heard in April.

"There have been briefs filed in the Louisiana case in front of the Supreme Court by victims' groups and I've read those and they have a consistent theme," said Wilson.

Wilson says the briefs argue that once the crimes are discovered, it will keep the child from telling the police because they don't want a relative to face execution.

"(The briefs) consistently say this not only will not help the situation, this will not deter the offenses. It will actually chill the child's reporting to authorities so we will discover less of the pedophiles out there."

The Jessica's Law index is here.