Law Prof Larry Tribe on Kennedy v. Louisiana (child rape death penalty case)

[aspergris]

from www.volokh.com

Tribe is always interesting, and is one of the top and most respected legal scholars in the country.

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Tribe on Kennedy v. Louisiana: Harvard law professor Laurence Tribe has an interesting article in today's WSJ on the Supreme Court's decision invalidating the death penalty for child rape and its potential reconsideration by the Court. Here's a taste:

Tribe says:
Emphasizing the evolving character of what constitutes an "unusual" if not an unduly "cruel" punishment, the court rested its condemnation of executing the rapists of children largely on what it described as a trend away from the use of death to punish such crimes both here and abroad.

But there was a problem with the court's understanding of the basic facts. It failed to take into account — because nobody involved in the case had noticed — that in 2006 no less an authority than Congress, in the National Defense Authorization Act, had prescribed capital punishment as a penalty available for the rape of a child by someone in the military.

Defenders of the court's decision in Kennedy v. Louisiana would have it ignore that embarrassing wrinkle by treating the military as a parallel universe that simply does not intersect civilian justice on the plane of constitutional principle. But a court searching for universal principles of justice in the name of the Eighth Amendment would be hard pressed to accept that view of the military/civilian distinction. Particularly when the court's division tracks the usual liberal/conservative divide, its credibility depends on both candor and correctness when it comes to the factual predicates of its rulings.