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Thursday, September 25, 2008
Death Penalty for Child Rape: How to Measure Consensus?
A quick visit to the SCOTUS blog revealed that the State of Louisiana has filed its final brief asking for cert regarding Kennedy v. Louisiana, in which the Supreme Court of Louisiana decided that a death penalty for child rape was unconstitutional.
The post, and the brief, are interesting in many ways. My particular interest here is in how the State wants the court to measure public support for the death penalty.
Courts do not eagerly engage with empirical studies, and there is very little in the way of fact-based conclusions; we've seen this in many instances, such as racial discrimination arguments; something about the death penalty, however, generates the feeling that somehow it would be wrong to decide this without giving any input to public opinion.
But how do you figure out how people feel about the death penalty? Louisiana suggests, in the brief, to infer this from acts of congress. According to the brief, if Congress, and the President, "evince" their support for death penalty from child rape, that indicates public opinion about this. This strikes me as a deeply flawed way to infer public opinion, democracy and representation notwithstanding. What do you think?
Posted by Hadar Aviram on September 25, 2008 at 10:03 AM in Criminal Law | Permalink
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» Kennedy Rehearing Roundup from Sex Crimes
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 C... [Read More]
Tracked on Oct 3, 2008 11:52:03 PM
Comments
Andy, I couldn't agree more about problematizing the very issue of consent as an important measure for anything, especially for issues of human rights. Yes, it *is* an issue, particularly given what I expect might be the result of a Gallup-style poll about support for death penalty in serious sex offense cases.
Posted by: Hadar Aviram | Sep 29, 2008 1:09:15 AM
"But it seems that, when the death penalty is concerned, we tend to be concerned about public opinion more than on other subjects."
This is a fair point, but the real question is: SHOULD we be concerned about public opinion in dealing with the constitutionality of the death penalty? (and should we be MORE concerned than in other cases where we minimally concern ourselves with public opinion?)
I really am curious what public opinion and consensus are. On the one hand I agree completely with several of the posters that some measures might be more legit than others. I know that polling is terribly complicated and can never provide primary evidence about motivations. I know elected officials are similarly flawed proxies for voter intent (and is voter intent even what we're after here?). But I also know that certain concepts underlie our system of government. And this sort of thing doesn't seem to be measurable.
So what would consensus be, as a concept? Is it an aggregation of individual intents? Is it just a stipulation-- a way of making sense of the positive law?
I hate to digress, but why aren't these answered first before we just assume that consensus matters?
Posted by: AndyK | Sep 29, 2008 1:01:27 AM
"trying to make an argument based on public consensus"
But which public consensus? The public consensus of what the law should be, as reflected in the laws that have been enacted? Or the public consensus of how generally feel about the death penalty? There's more than one way to define "public consensus"...
Posted by: andy | Sep 25, 2008 9:59:15 PM
Well, this is all well and good when we're making general policy arguments, but not when the state is deliberately trying to make an argument based on public consensus. There would be absolutely no need to ask the consensus question had the court not brought it up specifically. And the State could always say, the question of consensus is irrelevant. But it seems that, when the death penalty is concerned, we tend to be concerned about public opinion more than on other subjects.
Posted by: Hadar Aviram | Sep 25, 2008 6:34:39 PM
". . . wouldn't all these options be far inferior to a good survey conducted by people who know what they're doing? Surely, if SCOTUS was more conducive to fact-based analysis, Louisiana would, and should, have made the effort."
I would think that the people have decided that they will use the legislature to express their intent regarding the law. Thus, the only way to determine the people's desires regarding the law -- for purposes of legal analysis -- is to determine what their legislatures have enacted.
perhaps the Supreme Court could give effect to Gallup polls and if e.g. 80% of the people in a state say they are in favor of the death penalty, then the Court could assume that the people of that particular state want the death penalty. But that would controvert the procedural prerequisite the people (rightly or wrongly) stated should be followed before determining that a particular rule should become law in a given state.
Posted by: andy | Sep 25, 2008 6:11:51 PM
"This strikes me as a deeply flawed way to infer public opinion, democracy and representation notwithstanding. What do you think?"
When dealing with statutory interpretation, are you also opposed to inferring the intent of Congress from the laws they enact, or would you prefer interviews/polls with congressmen to determine their intent?
Interesting post...
Posted by: andy | Sep 25, 2008 5:51:39 PM
Given the rational-ignorance problem, I'm not sure there is any way to assess public opinion sensibly in any way that will improve on, say, an opinion poll about whether people like the Kennedy decision itself (see, e.g., here: 55-38 against).
Posted by: Chris | Sep 25, 2008 2:16:23 PM
Well, yes, Chris, but wouldn't all these options be far inferior to a good survey conducted by people who know what they're doing? Surely, if SCOTUS was more conducive to fact-based analysis, Louisiana would, and should, have made the effort.
Posted by: Hadar Aviram | Sep 25, 2008 12:49:53 PM
"According to the brief, if Congress, and the President, 'evince' their support for death penalty from child rape, that indicates public opinion about this. This strikes me as a deeply flawed way to infer public opinion, democracy and representation notwithstanding."
Not perfect, but superior to either (a) a Gallup-style poll of people, many of whom are rationally ignorant, or (b) a poll of the Supreme Court, I think.
Posted by: Chris | Sep 25, 2008 10:39:39 AM
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