The Faculty Lounge

Can Psychological Injuries Ever Justify Execution?

During the  recent Supreme Court argument in Louisiana v. Kennedy (the case considering the constitutionality of capital punishment for child rapists), counsel for the state detailed the  serious injuries suffered by the 8 year old rape victim  - including some that required surgical intervention.  At the end of a graphic account of this damage, Justice Stevens asked if the injuries were permanent and counsel for the state said they were not.  Counsel then stated that the rape inflicted (presumably permanent) psychological injuries on the victim.  It thus seems that, to the degree that the human harm must be proportionate to the sanction, Louisiana believes serious, but relatively short-term, injury, paired with permanent psychological injuries, is sufficient to render death constiutional.

Nobody should diminish the awfulness of this crime, the pain and fear the victim felt at the time of the incident, and the psychic scars that it surely left.  But since the return of the death penalty, we have not executed a single person who did not actually kill someone. If the Court considers the death penalty suitable under the circumstances in Kennedy, it seems that the sanction could be legally imposed for scores of offenses - everything ranging from arson, to assault, to attempted murder, and probably others.  An unarmed street assault, for example, may cause the victim pain, injuries, and long term psychological harm.  

Maybe cases with child victims are different.  As I've previously written here and here, the parties tried to stoke broad anxiety over child safety in their briefs.  But it's awful hard to figure out a principled basis to say that assaults/rapes/arson victimizing 17 year olds are inherently worse than those crimes, when perpetrated against 18 year olds.  That's not to say the Court might not draw that line; they did it in reverse when they outlawed death for child offenders in Roper v. Simmons.  And I suppose, just as Louisiana tried to turn the arguments about shifting national consensuses on those who first offered them, supporters of death-for-rape might make the same point about age: the line may be irrational, but it's how we've decided to analyze these matters.

At the end of the day, it seems to me that the Court is either going to maintain the prohibition on executing rapists, or the entire death penalty doctrinal regime - everything post Furman - may be on its way out.  That doesn't mean that the death penalty will necessarily spread to every violent or dangerous offense; each legislature will make its own decisions.  Perhaps allowing legislatures freer reign will cause a broad public debate and ultimately lead citizens to revisit their apparent taste for capital punishment.   But I'm a skeptic.  As we've learned again and again, no legislator ever lost her job by voting for tougher criminal sanctions.

Megan's Law And The National Consensus For Death

I've been reading over the briefs in Kennedy v. Louisiana, today's Supreme Court case considering the constitutionality of capital punishment for child rapists.  Yesterday I noted that the amicus brief of several states appropriated the overblown rhetoric of the child abduction panic movement.  But there's more interesting stuff there and it again sounds in shady conflation - in this case, arguing that the existence of Megan's Laws prove that America supports death in child rape cases.

In Louisiana's brief, the petitioners argue that  "objective indicia" reflect a growing national consensus that  death is not a disproportionate sanction for child rape.  The state points to three proofs: first, they argue there is a trend towards states adopting such laws; second, they contend that prosecutors and juries think this sanction is OK; and third, according to the state, "the widespread enactment of “Megan’s Laws” has also been posited as an indicator demonstrating 'a society more comfortable with the severe punishment and deterrence of child rapists and child molesters.'

Whoa Nellie!  First, how does widespread enactment of sexual offender registration and notification speak in any way to the appropriateness of the death penalty?  Even if notification was a punishment, it's mighty weak, comparatively.  And this argument seems particularly odd given that most jurisdictions have concluded that Megan's Laws aren't even punishment at all - and therefore don't implicate the ex post facto clause.  Perhaps even more strange, and dare I say disingenuous, in prior litigation the State of Louisiana expressly argued that Megan's Law isn't punishment at all...and the Louisiana courts agreed.  See Olivieri v. State, 779 So. 2d 735.   

Indeed, the fervor with which both Louisiana and amici argue for the moral culpability of child rapists makes me wonder why states "treat" these offenders in therapeutic preventive detention - i.e., civil commitment for "sexually violent predators".  Here's the problem.  When states seek to incarcerate people in anticipation of future crimes, something that is constitutionally prohibited if it's called punishment, they argue sexual offenders have a condition equivalent to mental illness.  They are detained for treatment.  When, on the other hand, such an individual actually offends, the offender acts out of pure free will. 

I'd suggest that states can't have it both ways when it comes to offender culpability, just as they can't argue that Megan's Law is both non-punishment and brutal punishment.  But perhaps they can.  We've lived through a generation of "death is different" jurisprudence.  We may now be entering the  "child abusers are different" era.  The ex post facto law and cruel and unusual punishment prohibitions may no longer apply. 

Update: Corey Yung over at Sex Crimes has further comments on these issues here, with an incredibly good collection of links here.  Dan Markel considers whether death is ever retributive here.  And Doug Berman has been offering a host of thoughts here.

Do We Offer Too Many Death Penalty Courses?

I just participated in an interesting Eighth Amendment conference sponsored by the University of Pennsylvania Journal of Constitutional Law.  (Doug Berman was there, among distinguished others, and previoulsy blogged about it here.)  Lots of interesting issues surfaced over the course of several panels and many informal chats.  I'm going to try to touch on a couple of the issues in individual blog posts over the next few days. 

Readers of Sentencing Law and Policy know that Doug believes that the intense scrutiny about the death penalty - among both commentators and litigators - is grossly disproportionate to it's actual impact and has the effect of skewing criminal justice debates and undermining many other needed reforms.  As a former public defender, I suspect that I weight the effects of individual draconian sentences on individual defendants more heavily than Doug, even though I fundamentally agree: the death penalty is barely the tip of the iceberg when it comes to criminal justice dysfunction. 

Doug argues that the legal academy bears some of the blame for this.  He argues (his stats, not mine) that about 150 law schools offer courses on the death penalty, while only about 30 offer general sentencing classes.  And Sharon Dolowich and Margo Schlanger piped up that there are no more than 5 lecture-style courses on the constitutional law of incarceration and corrections.   Doug contends that this reflects the preferences of law faculty - who find the death penalty a glossy and compelling issue - and also serves to reproduce this view of the world on the part of students.  He argues that those seeking real change in criminal justice policy should refocus students on the big picture issues like mass incarceration, oversentencing, prison conditions, and the like.  I have a different take on this.