Sex Crimes

Death Penalty for Repeat Sex Offenders?

After the Supreme Court held in Kennedy v. Louisiana that "a death sentence for one who raped but did not kill a child, and who did not intend to assist another in killing the child, is unconstitutional," you may have thought that this debate would be over. Recently however, an Oklahoma lawmaker says he wants to make the death penalty an option for repeat sex offenders.

[Rep. Rex Duncan's] legislation would set the penalty for a first-time sex offender at life without parole. Prosecutors would be able to seek the death penalty for a second conviction.

A similar bill passed in Oklahoma in 2006, but was shot down by the Supreme Court a year later. Duncan says his bill would be much more specific than that bill and thinks it would be upheld by the Supreme Court.

Sex abuse expert Sharon Doty agrees, but not when it comes to the death penalty. She believes life without parole would be a harsher punishment.

"They think their behavior is normal and appropriate," Doty says. "So, when that's what you're impacting something like the death penalty, I don't think is really going to be a deterrent."

She says the real answer is prevention -- educating children and adults to know what to look for.

"There is no cure for that," Doty says. "The only cure we have for this is prevention. So, we have to prevent either before they act or when they're convicted when they need to put them away and leave them there."

H/T: Sentencing Law & Policy.

Federal Sentencing Reporter Sex Offender Issue is Out

As Doug Berman notes, the Federal Sentencing Reporter issue dedicated to sex offender issues is out. You can find the details here. I was honored to be one of the contributors and as I noted I have also made my piece available on SSRN. Here is the entire list of articles in the issue:

• Michael O’Hear, Perpetual Panic
• Mary Ann Farkas & Gale Miller, Sex Offender Treatment: Reconciling Criminal Justice Priorities and Therapeutic Goals
• Ian N. Friedman & Kristina W. Supler, Child Pornography Sentencing: The Road Here and the Road Ahead
• Eric S. Janus & Robert A. Prentky, Sexual Predator Laws: A Two-Decade Retrospective
• Mary Graw Leary, Kennedy v. Louisiana: A Chapter of Subtle Changes in the Supreme Court’s Book on the Death Penalty
• Joseph L. Lester, Brandishing the Mark of Cain: Defects in the Adam Walsh Act
• Michael Petrunik, Lisa Murphy, & J. Paul Fedoroff, American and Canadian Approaches to Sex Offenders: A Study of the Politics of Dangerousness
• Richard G. Wright, From Wetterling to Walsh: The Growth of Federalization in Sex Offender Policy
• Corey Rayburn Yung, The Sex Offender Registration and Notification Act and the Commerce Clause

Michael O'Hear, who blogs at the Marquette University Law School Faculty Blog and was the editor for the issue, has also put his editor's observations on SSRN. Here is a taste from the article: 

Legislators who wish to respond to strong public sentiment but who are troubled by the track record of statutes adopted in times of panic should consider a legislative device that reverses the forces of legislative inertia: the sunset provision. When adopted, new criminal penalties can be set to expire within a given period of time. The history of the crack panic, as well as the earlier sex crime panics, suggests that ten years may be an ideal period of time to permit public passions to subside. A decade should also be a good amount of time to permit rigorous evaluation of the effectiveness of new laws. For instance, as Janus and Prentky point out in this issue, the spread of civil commitment laws was rapid in the 1990s but slowed dramatically this decade as the fiscal burdens of commitment became clearer.84 In the current budgetary climate, one wonders how many state legislatures would now be happy to see civil commitments die out quietly under the terms of a judicious sunset provision. To be sure, in the panic atmosphere, a sunset provision may be criticized as watering down the legislature’s condemnation of whatever class of offense or offenders is being targeted. On the other hand, the adoption of a sunset does not necessarily mean there will be a weakening of the legal response to the subject of current public outrage. Indeed, if public concern remains high over an extended period of time and analysis shows that tough penal responses are helpful, then the imminent expiration of one set of penalties may actually facilitate the enactment of even higher penalties. But, if public concern wanes or penal responses are shown to be ineffective, it should be made as easy as possible to redirect scarce criminal justice resources in more fruitful directions.

I wanted to thank Berman and O'Hear for inviting me to take part in the issue. I think all of the articles look really interesting and I look forward to reading them.

Ohio State Journal of Criminal Law

The new issue is out with a wonderful sex-crimes-focused lineup of articles. Wayne Logan, who does excellent work in this area put together a symposium of three very important articles.

The first article is Virginia Davis and Kevin Washburn, Sex Offender Registration in Indian Country, 6 Ohio St. J. Crim. L. 3 (2008). This piece addresses some of the thorny issues raised by the application of registration laws to Native America. While the issues are limited geographically, the article should be read by anyone interested in registration issues more broadly.

The second piece is Eric S. Janus and Brad Bolin, An End-Game for Sexually Violent Predator Laws: As-Applied Invalidation, 6 Ohio St. J. Crim. L. 25 (2008). You might remember Janus as the author of the excellent book Failure to Protect. The article is focused on the use of civil commitment as a means of regulating sex offenders. Janus and Bolin suggest an interesting way of constructing the legal challenge to such laws that offers insight surely valuable to practitioners and scholars alike.

 

The final symposium piece is by the editor himself: Wayne A. Logan, Criminal Justice Federalism and National Sex Offender Policy, 6 Ohio St. J. Crim. L. 51 (2008). Logan's article focuses on an issue near and dear to my heart: whether the federal government has any role in the construction of sex offender policy. It's a very long piece and I've only made my first quick read-through of it. I think it is an absolute must read for anyone concerned with federal sex offender policy. Here is a taste (which is the conclusion to the article):

Federal concern over the perceived national menace of crime is of course not new. What is new, however, is the federal government's resolve to impose a national solution and the lack of any meaningful countervailing resistance to it. Just as the U.S. has increasingly moved to nationalize and render more uniform heretofore disparate state approaches to commercial law, such as products liability, and environmental policy, it has done so with criminal justice policy—in particular that relating to sex offender registration and community notification. That the shift has occurred via federal use of the "Trojan horse" of conditional spending power authority, rather than through the more controversial method of Commerce Clause authority, does not alter the outcome. The nationalization of registration and notification, systematically achieved by the federal government over a fifteen-year period, has had major effect on constitutional federalism and the states themselves. It may be that the unique social and political dynamic inspired by sex offenders is unique, limiting the broader implications of the story chronicled here. However, given the high political salience and potency of crime control more generally, and the disdain felt for criminal offenders, this might well not be the case. If indeed the essence of federalism lies, as William Livingston asserted over fifty years ago, "not in the institutional or constitutional structure but in [the attitudes of] society itself" then the transformation recounted here may well have broader implications for other criminal justice policy areas in the years to come.

Outside of the sex offender policy symposium, there is an article about Kennedy v. Louisiana: Heidi M. Hurd, Death to Rapists: A Comment on Kennedy v. Louisiana, 6 Ohio St. J. Crim. L. 351 (2008). Given all the other good stuff in the issue, I haven't even had a chance to look at this last piece, but I'm looking forward to it.

I applaud the efforts of the Ohio State Journal of Criminal Law, Doug Berman, and Wayne Logan in putting together such a valuable contribution to the scholarship regarding sex offender laws. I hope everyone checks the articles out.

Louisiana Supreme Court Addresses Kennedy Re-Sentencing

In light of the U.S. Supreme Court decision in Kennedy v. Louisiana, the Louisiana Supreme Court has ordered that Mr. Kennedy be re-sentenced to "life imprisonment at hard labor without benefit of parole, probation or suspension of sentence." The Advocate New Orleans has more. From the opinion:

On remand from the United States Supreme Court, Kennedy v. Louisiana, 128 S.Ct. 2641, 171 L.Ed.2d 929, and in light of the Supreme Court's holding that even in cases involving the rape of a child, "[a]s it relates to crimes against individuals . . . the death penalty should not be expanded to instances where the victim's life was not taken," 128 S.Ct. at 2659, which effectively sets aside defendant's death sentence, we are constrained to grant defendant's present motion and to remand this case to the 24 th Judicial District Court for the resentencing of defendant to life imprisonment at hard labor without benefit of parole, probation or suspension of sentence.

H/T: How Appealing.

HLR Publishes Kennedy Case Note

Harvard Law Review's latest issue is now available online. The issue includes a nice case note on Kennedy v. Louisiana.  From the summary:

... Writing for the Court, Justice Kennedy held "that a death sentence for one who raped but did not kill a child, and who did not intend to assist another in killing the child, is unconstitutional under the Eighth" Amendment's proscription of cruel and unusual punishment, basing the ruling "both on consensus and the Court's own independent judgment." ... The Court also rejected Louisiana's broader argument that the few states that had capital rape statutes better represented the current standards of society because they represented "a consistent direction of change in support of the death penalty for child rape," saying that consistent change had not been proven and might not make a difference anyway. ... The Kennedy Court held that capital punishment is disproportionate for the crime of child rape, even though the victim " must endure years of long anguish" - no matter how terrible a rape, it is not murder. ... "These interpretations," said Justice Alito, "have posed a very high hurdle for state legislatures considering the passage of new laws permitting the death penalty for the rape of a child." ... It is troubling that this second part of the Court's Eighth Amendment test rests on even less rigorous methods to define evolving standards of decency than the statute-counting rubric used to determine the national consensus. ... A presumption of constitutionality would allow states to continue to change their statutes during periods of apparent disagreement as to a national consensus, and require the Court to wait to see if a consensus truly emerges before declaring a standard of decency to exist by forcing it into existence.

What's Happening in Vermont?

As my colleague Colin Miller has indicated, quite a bit is happening in Vermont. Colin focuses, not surprisingly, on the evidence law related issue. While members of the Vermont Senate have proposed a 34-point plan, among the ommitted suggestions was a rule which would have, as Colin notes, "brought Vermont in line with the much despised Federal Rules of Evidence 413-415." Strangely, the news account of the story focuses on what wasn't included, while details of the 34-point plan are sketchy. For a little bit more information about the portions that did not make the cut, here are some of the details from a local news account:

In fact, Sears said from the outset that the committee would not spend time looking into two ideas backed by Douglas — civil confinement and the death penalty. Civil confinement would allow the state to hold certain sex offenders in prison beyond their sentences. Neither idea is included in the document.

Three other ideas have also been excluded from the Judiciary Committee's recommendations, including "judicial accountability," the federal Adam Walsh Act of 2005, and the idea of allowing a defendant's prior bad acts to be accessible to law enforcement and admissible in court, Sears said.

The failure to include an AWA compliance provision is pretty notable, but that may simply be taken up as a separate bill. I'm a bit surprised that the death penalty was even close to serious consideration after Kennedy v. Louisiana.

New Article about Kennedy v. Louisiana

Bidish Sarma has written a short article at the Yale Journal Pocket Part about the legacy of the Court's decision in Kennedy v. Louisiana. Sarma was involved in the litigation, so the article comes from an interesting perspective. I think the article is a valuable contribution to defining what Kennedy will stand for in future cases. On that point, this is what Sarma had to say:

The decision’s lasting legacy shall emerge from the Court’s “independent judgment” analysis. The majority stated that it struck down Louisiana’s law because of “both [the] consensus and our own independent judgment.” In his statement respecting denial of rehearing, Justice Scalia contended that the majority opinion turned only on the independent judgment of the Court; “there is no reason to believe that absence of a national consensus would provoke second thoughts.”

The Court’s response to the State’s petition may support Scalia’s conclusion. The petition squarely asked whether the Court’s independent judgment could serve as a stand-alone justification. The majority tweaked its opinion with a footnote, but did not address this question. This silence bolsters Scalia’s claim, despite the majority’s insistence that the national consensus “is entitled to great weight.”

Anti-death penalty advocates are now surely encouraged to pressure the Court to declare inhumane laws unconstitutional without the typical inquiry into the number of state legislatures that have abandoned the practice. The opportunity to appeal to the Court’s independent judgment provides great hope for those seeking to defeat the death penalty. Indeed, as Justice Stevens’ concurring opinion in Baze v. Rees foreshadows, the moment a plurality of the Court will find the arbitrary application of the death penalty cruel and unusual—without tallying state laws—is now foreseeable.

I am not sure I agree with Sarma on this point. I think the "independent judgment" analysis is really the same as the subjective component applied in prior cases. I think Sarma may be giving too much credence to Scalia's characterization of the majority opinion. To my mind, this decision is a logical extension of the objective analysis that has been used in every case since Coker.

To be fair, though, I am sure Sarma would have a lot to say in response to my argument. While I'm generally a fan of the online law review format, Yale's article limitations sometimes limit the author's ability to make sophisticated legal argument. The word cap, I believe, is 1,500 words. By the time an author sets up the argument, it is difficult to fully analyze the legal issues involved. So, my criticism should be taken with a grain of salt as I have the luxury of no length limitations, no need to explain the background, and no editors breathing down my neck. So, I recommend checking out Sarma's piece for yourself.

Sentencing Law & Policy is also covering the article here.

Kennedy Rehearing Roundup

To finally put the blogger's nail in the Kennedy v. Louisiana coffin, here are some interesting links about rehearing (including a couple that were actually posted before the Court voted against rehearing):

Death Penalty for Child Rape: How to Measure Consensus?
Kennedy (lack of) rehearing wrap-up and the future of criminal justice federalism
Deep thoughts about Kennedy while rehearing motion pending
A Westerbergian analysis of Kennedy v. Louisiana
Instant evolution's gonna get you
Supreme Court Won't Change Decision Preventing Executions for Child Rape
Case Closed (HT: Crime & Consequences)
Analysis: The death penalty calculus is unchanged

The final update to the Kennedy v. Louisiana Resource Page should be up in the next week.

A New Error in Kennedy

CAAFlog has the details on an error (albeit a less significant one) in the majority's statement regarding rehearing in Kennedy:

I'm not sure what the word "final" means in that sentence (does he mean "approved"?). But regardless of what "final" means, the sentence is wrong. There are currently only five individuals sentenced to death under the UCMJ.

It's apparent why Justice Kennedy got that wrong -- he cites NAACP LDF's authoritative Death Row U.S.A. as the source of his numbers. But on page 1 of the Winter 2008 Death Row U.S.A. issue, the words, "As of January 1, 2008" appear in huge type. Had Justice Kennedy written that as of January 1, 2008, there were six individuals subject to a sentence of death under the UCMJ, he would have been right. But as we know, since January 1, 2008, the Navy-Marine Corps Court of Criminal Appeals set aside LCpl Wade Walker's death sentence, a decision that is now final (though he remains vulnerable to being resentenced to death). United States v. Walker, 66 M.J. 721, 757 (N-M. Ct. Crim. App. 2008) ("The sentence is set aside and a rehearing on sentence is authorized."). So when Justice Kennedy writes that there are six individuals "now" subject to military death sentences, he is wrong.

I have to say that I was shocked that the Court didn't make any mention of Col. Sullivan and his discovery of the original error. That a blogger caused the Court to reconsider one of its opinions is unprecedented. It's a crime that the Court didn't see fit to note that fact.

Court Modifies Kennedy Decision

From SCOTUSBlog, the Court has modified both the majority and dissenting opinions in Kennedy v. Louisiana by adding footnotes to each opinion. The modifications can be seen here in the modified opinion. Footnote * of the majority opinion now reads:

When issued and announced on June 25, 2008, the Court’s decision neither noted nor discussed the military penalty for rape under the Uniform Code of Military Justice. See 10 U. S. C. §§856, 920; Manual for Courts-Martial, United States, Part IV, ¶45.f(1) (2008). In a petition for rehearing respondent argues that the military penalty bears on our consideration of the question in this case. For the reasons set forth in the statement respecting the denial of rehearing, post, p. ___, we find that the military penalty does not affect our reasoning or conclusions.

Footnote 6 of the dissenting opinion now reads:

Moreover, as noted in the petition for rehearing, the Uniform Code of Military Justice permits such a sentence. See 10 U. S. C. §856; Manual for Courts-Martial, United States, Part II, Ch. X, Rule 1004(c)(9) (2008); id., Part IV, ¶45.f(1).

As I've previously made clear, I think the decision to not rehear the case was the right one. Footnote * refers to a statement regarding a denial of rehearing. I haven't seen that statement yet, but hopefully it explains the Court's arguments for not rehearing in greater detail. Otherwise, all the briefing by the parties and the S.G. seems for naught. I will post the statement regarding rehearing here as soon as its available.

Update: Here is Justice Scalia's statement on rehearing. It is a bit interesting that Scalia authored this statement given that Justice Alito wrote the dissenting opinion. Only Justice Roberts joined Scalia on the rehearing statement. Justices Alito and Thomas would grant rehearing, but as I read it, they didn't join Scalia's statement. And here is the statement from the majority about rehearing. The statement also outlines the modifications made to the opinions (with an additional minor modification to the dissent). Here is a key portion of the majority's statement (which I think is exactly right):

In any event, authorization of the death penalty in the military sphere does not indicate that the penalty is constitutional in the civilian context. The military death penalty for rape was in effect before the decisions in Furman v. Georgia, 408 U. S. 238 (1972) (per curiam), and Coker v. Georgia, 433 U. S. 584 (1977); and when the Court surveyed state and federal law in Coker, it made no mention of the military penalty. See id., at 595–596, 593, and n. 6 (plurality opinion) (not including the military as a “jurisdiction in the United States” that authorized the death penalty for rape, and naming the Federal Government among jurisdictions that recognized the death penalty for rape prior to Furman but citing only the nonmilitary provision). The same is true of more recent Eighth Amendment cases in the civilian context. See Enmund v. Florida, 458 U. S. 782, 789–793 (1982); Tison v. Arizona, 481 U. S. 137, 152–154 (1987).