Sunday, August 24, 2008


Substantive posts to resume when the room stops spinning.



Thursday, August 7, 2008

More Thoughts on Kennedy v. Louisiana

Last month I offered some analysis of Kennedy v. Louisiana, the case from June in which the Supreme Court ruled that executing child-rapists constitutes Cruel and Unusual Punishment.  I discussed my views on how the five Justices in the majority had further loosened the standard for finding a national moral consensus that a punishment is grossly disproportionate and then fully rendered that standard  nonsensical (assuming it wasn’t already) by announcing that community standards could only evolve in one constitutionally-cognizable direction: toward more restrictive use of the death penalty.  In this portion I'll discuss a third major point of constitutional doctrine to come from the case and the overarching practical lesson from the majority opinion about the future of the death penalty in America.


3.  Despite all of the Court’s discussion about evolving standards of decency and its further lowering of the bar for proving a national moral consensus, Kennedy probably confirms that the "independent judgment" of the justices taken alone is enough to declare a death sentence disproportionate. 

As in previous cases like Atkins and Roper, the Court’s analysis in Kennedy consists of two parts.  The first, discussing how standards of decency have supposedly evolved, I’ve already addressed.  The second is the majority Justices’ announcement of their “independent judgment” about whether the death penalty is a proportionate sentence for child rapists.  As you either know or have guessed from my setup, Justices Kennedy, Stevens, Souter, Ginsburg, and Breyer declared that in their moral/policy judgment the imposition of the death penalty for child rape is unjustified.

Now, I have a ton of problems with the notion that the Eight Amendment somehow gives Justices free reign to decide whether a punishment is grossly disproportionate for a given crime based on their own moral and policy attitudes. But, for purposes of this post (and because those problems have been covered extensively elsewhere), let me stick to the doctrinal change to independent judgment analysis that appears to have come to full fruition in Kennedy.  Or, put more exactly, the change in the relationship of the Justices’ exercise of their independent judgment to the evolving moral standards of society about proportionality and the death penalty.

As recently as Atkins in 2002, a majority of the Court strongly implied that the independent judgment of the Justices only comes into play after the Court has concluded that a societal consensus exists that a punishment is disproportionate.  For instance, to quote Justice Stevens’s majority opinion in that case: “Thus, in cases involving a consensus, our own judgment is brought to bear, by asking whether there is reason to disagree with the judgment reached by the citizenry and its legislators.” (Citation and quote marks omitted, emphasis added.)  Furthermore, in announcing the Atkins majority’s independent judgment, Justice Stevens explained that the majority had “no reason to disagree” with the supposed consensus against executing mentally retarded defendants.

But this language suggesting that independent judgement should only be used to essentially double check a finding of moral consensus was not repeated by Justice Kennedy in his 2005 majority opinion in Roper.  Instead, Justice Kennedy stated that national consensus inquiry merely provides the Court with “essential instruction”; at the end of matter the Justices’ independent judgement is decisive.  In the Kennedy case. the majority stuck with and entrenched this subtle but important change.  Indeed, the Court made it abundantly clear which consideration was the superior:

As we have said in other Eighth Amendment cases, objective evidence of contemporary values as it relates to punishment for child rape is entitled to great weight, but it does not end our inquiry. The Constitution contemplates that in the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment. We turn, then, to the resolution of the question before us, which is informed by our precedents and our own understanding of the Constitution and the rights it secures. (Citations and quotation punctuation omitted.)

And that, as they say, is that.

It’s true that the Court (at least to my knowledge) has never found a death sentence in line with national moral values but declared it grossly disproportionate anyway in an exercise of the Justices’ independent judgment.  It’s also true that because of the Court’s recent removal of whatever stringency national consensus analysis  may have once had that scenario will probably never come to pass.  Still, Kennedy (following on the heals of Roper) suggests that even if the Court were to conclude that a death sentence didn’t contradict a national moral consensus it could still --in an almost unvarnished use of what can only be called natural law judging-- strike it down.

The Overall Lesson of the Case

In the wake of Kennedy it is evident that a majority of the current Justices, led by Justice Kennedy (no reference to the case name intended), have launched a multi-part attack on the national moral consensus standard, with the result that at this point it’s nearly moot.  National moral views can only evolve in one constitutionally cognizable direction: towards greater limitations on the types of crimes and defendants that can be punished by death.  Proving that the a new “consensus” has taken hold is easy, even where a majority of states that allow the death penalty authorize it for the type crime or defendant in question.  And if a supposed consensus is the result not of the collective moral and policy judgments of  legislators but of mere obedience by legislators and judges to the Court’s past dicta?  Doesn’t matter. And should a future Court be honest enough to admit that a consensus doesn’t exist (or actually exists in favor of the constitutionality of imposing death for a certain crime)? A majority of Justices can openly follow what they feel is right and wise in their independent judgement anyway. 

Don’t misunderstand me, Justices Kennedy, Souter, Stevens, Breyer, and Ginsburg aren’t likely to completely bar the death penalty in the near future.  The Atkins/Roper/Kennedy five aren’t stupid: they know that in the current political environment announcing that the death penalty is completely invalid would result in a massive public backlash against the Court and, quite possibly, a constitutional amendment negating the move.  Additionally, laws that are shared by all or almost all jurisdictions that have the death penalty (eg. provisions allowing juries to sentence cop-killers to death) are probably safe in the near term.  But there can be little doubt that unless the balance of votes on the Court shifts or Congress and the States pass a preemptive constitutional amendment the Court will continue pushing America, step by step and regardless of actual popular attitudes, along “the road to full progress.”

Tuesday, August 5, 2008

One of the Best Things in Life, Soon To Be Gone?

The $1 McDonalds Double Cheeseburger, that value-laden unit of greasy, cheesy, ketchupy perfection, may soon belong only to the ages. According to The Wall Street Journal, in response to rising beef and cheese prices and complaints from franchise owners about the low profit margin on the product McDonalds has been testing out price increases in a few of its stores.


Friday, August 1, 2008

FCC Declares Comcast in Violation of Non-Law

You may have heard that the FCC today ordered Comcast to cease and desist reducing the bandwidth available to peer-to-peer applications used by subscribers of its cable internet service. Comcast had claimed that P2P applications, which are of course primarily used to illegally share copyrighted media and child pornography share large files in completely legal ways, consume a disproportionate amount of network capacity.  However, the FCC Commissioners, in a 3-2 vote, were having none of it.

Now, Comcast didn't actually violate any federal rules or statutes.  Instead, according to the commissioners in the majority the company violated FCC "principles" about internet openness.  Adopted in 2005, those principles are:

  • To encourage broadband deployment and preserve and promote the open and interconnected nature of the public Internet, consumers are entitled to access the lawful Internet content of their choice.

  • To encourage broadband deployment and preserve and promote the open and interconnected nature of the public Internet, consumers are entitled to run applications and use services of their choice, subject to the needs of law enforcement.

  • To encourage broadband deployment and preserve and promote the open and interconnected nature of the public Internet, consumers are entitled to connect their choice of legal devices that do not harm the network.13

  • To encourage broadband deployment and preserve and promote the open and interconnected nature of the public Internet, consumers are entitled to competition among network providers, application and service providers, and content providers.

Comcast asserted that these principles are, essentially, little more than vague platitudes and general aspirations about the way the online world should be and are not enforceable law.  Indeed, the company pointed out that at the time the principles were adopted in 2005 current FCC chairman Kevin Martin commented that they "do not establish rules nor are they enforceable documents." Comcast also noted that the FCC said at the time that the principles were "subject to reasonable network management."

One may be tempted to agree with Comcast's legal arguments about "due process" and such, but come on, do we really need that whole "rule of law" thing in such cases?  Instead of forcing the agency to take the time to think through and pass formal and specific rules thorough a defined policymaking process, or even worse rely on Congress to pass statutes (how 18th century), can't we just let the FCC make effectively ad hoc decisions about matters within its purview?  That's what the modern FCC is best at anyway.



Just for the sake of completeness, the reason I didn't link to the FCC's actual Memorandum Order and Opinion ruling against Comcast is that the agency hasn't released it yet.  Instead, the Commissioners in the majority decided to formally announce their decision by, yes, issuing a press release.  One presumes that they will release an MO&O eventually, and I'll link to it when that occurs.


Today, a grand jury in Philadelphia indicted nine people in the death of Danieal Kelly, a 14 year old disabled child.  Among the nine was her mother, charged with murder.  The AP relates a bit about how Danieal died:

For days before Danieal Kelly died in a fetid, airless room — made stifling hot by a midsummer heat wave — the bedridden teenager begged for something to drink until she could muster only one word: water.

Unable to help herself because of her cerebral palsy, she wasted away from malnutrition and maggot-infested bedsores that ate her flesh. She died alone on a putrid mattress in her mother's home, the floor covered in feces. She was 14 but weighed just 42 pounds.

Forgive me for the reaction, but as I was reading the story I couldn't help but imagine how those who think the death penalty is unconstitutional would argue that sentencing Daniel Kelly's mother to death (assuming a murder conviction) would be a "grossly disproportionate" punishment.