From the Bench

Calendar

November '24
S	M	T	W	T	F	S
					1	2
3	4	5	6	7	8	9
10	11	12	13	14	15	16
17	18	19	20	21	22	23
24	25	26	27	28	29	30

Links

6 of 11 linksCaddo Parish Sheriff's Office
Caddo District Attorney
Caddo Parish Clerk of Court
City of Shreveport Homepage
Scott for Justice
Caddo Parish School Board

Ruminations on Kennedy v. Louisiana
Thursday, Aug 28, 2008 10:00am

Ruminations1 on Kennedy v. Louisiana –

Further Erosion of the Death Penalty

In an article published on this website on May 21, 2008, “No Requiem For the Death Penalty (Or, Lethal Injection Gets Another Shot)”2, I wrote the following:

On April 16, 2008, the Supreme Court of the United States rendered a significant decision on the death penalty. While Baze, Et Al v. Rees, Commissioner, Kentucky Department of Corrections, Et Al, 553 U.S. ___ (2008), 128 S.Ct. 1520 is a 7-2 decision which death penalty proponents deem to be a clear victory, the opinion provides a picture of the five justices who clearly favor the death penalty and, possibly, four who philosophically disfavor it.

The issue in Baze was whether the particular lethal injection protocol followed by the State of Kentucky is unconstitutional under the Eight Amendment’s ban on “cruel and unusual punishment” because of the risk that the lethal injection protocol not be properly followed, resulting in significant pain. In a thoroughly researched opinion, Chief Justice Roberts, joined by Justices Kennedy and Alito, held that Kentucky’s lethal injection protocol satisfies the Eight Amendment.

Justices Scalia and Thomas issued concurring opinions in response to the concurrence of Justice Stevens. The other concurring justice was Breyer. Not surprisingly, Justices Ginsburg and Souter dissented.

On June 25, 2008 in Kennedy v. Louisiana, 554 U.S. ____ (2008) 128 S.Ct. 2641, Justices Stevens and Breyer seemed to exit the closet and join the ranks of Justices Ginsburg and Breyer3 on this issue. As expected, Justice Kennedy established his position as a powerful swing vote, much like Justice Sandra Day O’Conner in previous years.

This 5-4 decision involved a defendant convicted in the State of Louisiana with the aggravated rape of his then 8 year old stepdaughter and sentenced to death. The Supreme Court of Louisiana affirmed the conviction and death penalty sentence reasoning that children are a class in need of special protection; that child rape is unique in terms of the harm it inflicts upon the victim and society; and that, short of first-degree murder, there is no crime more deserving of death.

In Kennedy the issue was whether the Eighth Amendment’s cruel and unusual punishment clause bars the imposition of the death penalty for the rape of a child where the crime does not result in the victim’s death. A slight majority held that the death penalty for rape of a child, where the child is not killed, is unconstitutional. The case was remanded to the Louisiana district court for re-sentencing which under state law and, by default, is life imprisonment without benefit of probation, parole, or suspension of sentence. The case is significant in a number of respects, one of which is that it evidences further erosion of the death penalty by a slim majority of U.S. Supreme Court.

We recall that in 2002, the Supreme Court rendered Atkins v. Virginia, 536 U.S. 304, which held that the execution of mentally retarded persons violates the Eighth Amendment4 and in 2005, the Supreme Court rendered in Roper v. Simmons, 543 U.S. 551 which held that execution of juveniles also violates the Eighth Amendment. Both decisions were predicated on the Supreme Court’s belief that young or mentally retarded offenders have a diminished personal responsibility for the crime of murder. In 2008, in Kennedy, the Court has further limited the type of case for which the death penalty may be imposed. Now, if an offender with a history of being a violent sex offender kidnaps a five year old child from the bedroom of her parents’ home in the middle of the night, rapes her repeatedly causing severe permanent physical and psychological damage and then cuts off both of her arms, this offender is ineligible for the death penalty following a full trial, due process and unanimous jury verdict no matter what the state law provides. Why? Because 5 justices out of 9 on the U.S. Supreme Court believe that it’s cruel and unusual punishment. However, if an offender rapes a victim once and immediately kills that victim, he is eligible for the death penalty. While I totally respect the rule of law and the court system in this country (and each day put my heart and soul into doing the best job I can possibly do), I respectfully submit that such apparent rationale by the majority of the U.S. Supreme Court makes little sense.

As Kennedy is a Louisiana case, Governor Bobby Jindal has requested that Louisiana Attorney General Buddy Caldwell and Jefferson Parish District Attorney Paul Connick ask the Supreme Court for rehearing and reconsideration. Governor Jindal stated “the Supreme Court got this case wrong, plain and simple. The most brutal and appalling crimes deserve the harshest penalties and the horrible rape of an 8 year old child most certainly is one of the most gruesome crimes imaginable”. I agree with Governor Jindal in all respects, and the case should be reconsidered for another reason – the High Court made a serious error in one of the factors upon which it based its decision.

As a basis for finding the death penalty unconstitutional the majority wrote that a national consensus had formed against it.

Thirty-seven jurisdictions – 36 states plus the Federal Government – have the death penalty. As mentioned above, only six of those jurisdictions authorize the death penalty for the rape of a child.

That is incorrect! In 2006 Congress enacted a death penalty for soldiers who commit child rape as part of an update to the Uniform Code of Military Justice (UCMJ). So, notwithstanding the fact that Congressional Acts are deemed constitutional, is the High Court saying that this Act of Congress is unconstitutional although the Court did not know of its existence? In any event, the U.S. Supreme Court’s basis for outlawing the death penalty in every case involving the rape of a child is factually flawed. On that basis alone, the Court should grant rehearing.

Even Justice Alito missed this fundamental error; nevertheless, he issued a brilliant and compelling dissent in which he aggressively questioned the soundness of the majority’s conclusions (1) to have identified “a national consensus” that the death penalty is never acceptable for the rape of a child and (2) based on its “independent judgment” imposing the death penalty for child rape is inconsistent with “the evolving standards of decency that mark the progress of a maturing society”. With respect to the “national consensus” finding, he pointed out that the Supreme Court’s 1977 decision in Coker v. Georgia, 433 U.S. 584, held that the Eighth Amendment prohibits the death penalty for the rape of an adult woman. He wrote that this pronouncement obviously “stunted legislative consideration” such that legislatures across the country would deem it unwise to pass an Act (death penalty for child rape) when it is likely, based on U.S. Supreme Court jurisprudence, that it will ultimately be found to be “cruel and unusual punishment” in violation of the Eighth Amendment. Thus the “national consensus” in terms of how many states enact such legislation is actually impacted – or “stunted” by the opinions of 5, or so, U.S. justices in Coker, Atkins and Roper which has resulted in near evisceration of the death penalty. Yet, the majority in Kennedy cites this lack of legislative consideration of the death penalty as a basis for its conclusions as to the “national consensus”. And, as to the majority’s reference of “evolving standards of decency that mark the progress of a maturing society”, Justice Alito effectively dissected and analyzed that finding by the majority with obvious arguments.

In my May 21, 2008 “No Requiem” article, I also wrote the following:

Thus, the opinion (Baze) provides us insight into the personal and philosophical views of the justices of the Supreme Court on the issue of the death penalty in this country. While some follow the rule of law despite personal philosophy, some do not. This April 16, 2008 opinion makes it clear that, at least for a while, there will not be a requiem for the death penalty. But one can reasonably infer that if the proper issue is framed and brought before the Court it would likely be a closer vote, either 6-3 or 5-4, on whether to retain the controversial death penalty. Inasmuch as the U.S President appoints justices to the Supreme Court5, in this election year given the viewpoints of this Court, some attention should perhaps be given to the presidential candidates’ views on this very important issue and their philosophy on judicial appointments to the Federal bench, particularly the Supreme Court of the United States.

So, for now, while there is not yet a requiem for the death penalty, the Kennedy decision demonstrates further erosion and evidences that the death penalty has a diminished vitality – not based upon the pronouncements of state legislatures across this country or on the wisdom of the U.S. Congress but upon what five justices, all of whom were appointed by former presidents, philosophically opine about what constitutes cruel and unusual punishment.

That being said (and, by the way, I feel so much better after exercising my First Amendment right), my job as a district judge is to apply the law impartially. The United States Supreme Court is the highest court in the land; the nine justices interpret the United States Constitution and the Court sets forth the law of the Unites States. Although I may not always personally agree with each decision, I will always “support the constitution and laws of the United States and the constitution and laws of this State” in accordance with my Oath of Office.

1 At the risk of sounding like I’m aspiring to be a law professor (which I’m not), I used the word “rumination” because it best describes my somewhat rambling and random observations on the Kennedy case, my opinion that there is continuing erosion of the death penalty by a slim majority of the U.S. Supreme Court, and the grave (excuse the pun) importance of selections by the next president of U.S. Supreme Court nominees. Interestingly, Webster’s defines ruminate as “to chew the cud, think over…muse upon, contemplate over and over…ponder over”. It is further defined: “to chew again what has been chewed slightly and swallowed - the cows stood in the yards all day ruminating…”

2 See right tab, “From The Bench”.

3 In District of Columbia v. Heller, 554 U.S. ___ (2008), 128 S.Ct. 2783 the Supreme Court in another 5-4 decision (not surprisingly, Scalia, Roberts, Kennedy, Thomas and Alito) held that the Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that firearm for traditionally lawful purposes. However, it is noteworthy that in his dissent Justice Stephen Breyer made the stunning observation that it was up to judges to weigh and “balance” the pros and cons of gun control laws. Wow!

4 I re-sentenced a convicted murderer to life imprisonment, vacating and setting aside the death penalty in accordance with Atkins, See opinion in State v. Corey Williams under the Court/Criminal Rulings tab of this site.

5 The composition is as follows:

Justice John Paul Stevens, age 88, was nominated by President Ford in 1975;

Justice Antonin Scalia, age 72, was nominated by President Reagan in 1986;

Justice Anthony Kennedy, age 71, was nominated by President Reagan in 1988;

Justice David Souter, age 68, was nominated by President George H.W. Bush in 1990;

Justice Clarence Thomas, age 60, was nominated by President George H. W. Bush in 1991;

Justice Ruth Bader Ginsberg, age 75, was nominated by President Bill Clinton in 1993;

Justice Stephen Breyer, age 69, was nominated by President Bill Clinton in 1994;

Justice John Roberts, age 53, was nominated by President George W. Bush in 2005;

Justice Samuel Alito, age 58, was nominated by President George W. Bush in 2006.

Don‘t Let This Be You

Videos

Podcasts

Calendar

Links

From the Bench