Filler on Kennedy

Dan Filler has a pair of interesting posts at the Faculty Lounge connecting the Kennedy case with the issues surrounding Megan's Law.  First, he emphasizes the commonality of rhetoric used to support Megan's Laws and the Louisiana capital child rape statute:

Now it seems that the state amici in Kennedy v. Louisiana, the Supreme Court's upcoming child-rape death penalty case, are playing the same game.  In their brief, Attorneys General from Texas, Alabama, Colorado, Idaho, Mississippi, Missouri, Oklahoma, South Carolina, and Washington argue that child rape has a devastating effect on society.  The crime is devastating for kids - no doubt.  But the following paragraph, which follows directly under this claim, looks an awful lot like the bolstering we saw in legislative debates over Megan's Law.  It conflates child rape with child neglect, emotinal abuse, physical abuse, prostitution, pornography, and other things, thereby producing very large numbers and a sense that a crisis is afoot...

You should definitely check out the rest of Filler's post to see his argument.  I strongly agree with Filler that it is important to examine the rhetoric used by policymakers, media, and other government officials in support of sex offender laws. When I wrote about the Louisiana statute a few years ago, my focus was on rhetoric that equivocated death with rape including the famous phrase that someone is "better dead than raped."  Since so few legal scholars focus on rhetorical analysis, it makes it all the more embarrassing that I didn't cite or discuss Filler's article in my work.  I have no real defense - I guess I'd blame being a full-time junior associate at a big firm at the time.

Filler, in his second post, addresses the issue of national consensus:

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.   

I was also amazed at this awful argument by Louisiana.  In fact, I would argue it a step further than Filler. The fact that all 50 states have adopted Megan's Laws, 20 have adopted Jessica's Laws, and yet only 6 have agreed to apply the death penalty is a clear sign that the national consensus is against capital punishment for child rapists. Sex offenders, including child rapists, are the population most often targeted for new punishment schemes and states have regularly followed national trends in the cases of registration and residency requirements. When it comes to capital punishment, however, the trend stopped at 6, and 5 of those states don't even have a single person on death row.  I think Louisiana was completely off-base in making this argument in support of its national consensus argument.

Related Posts: Kennedy v. Louisiana Resource Page

Comments

[Ilah]

"I was also amazed at this awful argument by Louisiana."

As was I, at first. Upon reflection, not so much. It's simply the first time a state has admitted its cognitive dissonance in a legal brief.