Saturday, September 13, 2008

Interesting analysis of Kennedy v. Louisiana rehearing petition

Professor Yung of John Marshall Law School -- the host of the Sex Crimes blog -- has written an interesting analysis of Kennedy v. Louisiana, 128 S. Ct. 2641 (2008), and the state of Louisiana's and Acting SG's efforts to have the Supremes revisit the opinion. Here's a link to his blog's discussion of his analysis. The blog post includes a link that will allow you to click through to the article itself. (Here's a link that may or may not lead directly to the article; I had to register with SSRN before I could get it to work.)

(For those of you following Kennedy closely, Professor Yung also provides a Kennedy v. Louisiana resource page, available here.)

Professor Yung makes the interesting point that Kennedy v. Louisiana's exclusion of the military justice system from its survey of U.S. criminal justice systems was consistent with every previous Supreme Court opinion using a nose-counting approach to analyzing the Eighth Amendment's Cruel and Unusual Punishment Clause. He writes: "The United States Supreme Court has issued twenty-eight opinions, including Kennedy, that have utilized the evolving standards of decency approach in analyzing claims under the Cruel and Unusual Punishment Clause of the Eighth Amendment. While several Court opinions mentioned the military or the UCMJ, not one opinion considered the military's criminal code as part of the objective indicia in determining the national consensus." (footnote omitted). And, he emphasizes, that includes Coker v. Georgia, 433 U.S. 584 (1976), the Supremes' previous Eighth Amendment analysis of rape as a capital offense.

Professor Yung goes on to argue that the UCMJ should be excluded from assessments of evolving standards of decency because military justice is sui generis. He argues: "When Congress enacts a law to modify the UCMJ, it only reflects a national consensus of the legitimacy of such a modification in the military -- not to society at large."

He concludes that while critics of the Kennedy decision might challenge the entire nose-counting approach to interpreting the Eighth Amendment, "to use the omission of the UCMJ amendment as a Trojan horse for the larger substantive argument is simply unsupportable as a matter of law, history, and practice."


John O'Connor said...

I agree that military justice is, and properly should be, sui generis on a number of issues. These would extend to various court-martial procedures and the criminalization of certain kinds of conduct. But I really can't think of a reason why that would be true for cruel and unusual punishment standards for offenses that are not purely military in nature.

No Man said...

JO'C, what about confinement with hard labor? Not allowed in the civilian world, allowed in military. Wholly different rationale than the death penalty analysis, but isn't that the point? It is at least a fair argument to say the evoclving standards approach would not consider this, and your I am sure the biggest fan of that approach.

Anonymous said...

Rape of a child is a heinous act but if, as the Supreme Court indicates, society does not feel that death is a warranted punishment why would it be warranted for a servicemember?

John O'Connor said...

I doubt hard labor without confinement (which is what I presume you meant) is unconstitutional in the civilian world, though not done as a policy matter. As Anon 1531 said, I can't think of a good reason why, if you accept the evolving standards line of thought, Congress's treatment of punishments in the military would be irrelevant to the calculus.

Corey said...


What about cases outside of the capital punishment context? For example, in my article I point to the military's potentially harsh punishment of adultery. If someone in the civilian world were convicted of criminal adultery and sentenced to 10 years imprisonment, should the Court consider the military's adultery prohibitions in an 8th Amendment challenge?

I also would point out that your argument is different than the one that Louisiana and the SG are making. They are arguing that the 2006 UCMJ Amendment is reflective of Congress', the President's, and society's overall judgment about the application of the death penalty to child rape. I have no problem with a minor notation to military policy in interpreting the 8th Amendment. However, military policy certainly isn't as important as any state and it does not reflect an overall social judgment on the legitimacy of a particular punishment for a crime.


Corey Rayburn Yung

John O'Connor said...

Prof. Yung:

You'll note I placed in a different category purely military offenses, an exception I believe would extend to an offense such as adultery. You do, after all, have to prove a negative effect on good order and discipline, or that the conduct is service-discrediitng, for adultery to be criminalized under the UCMJ.

If one accepts the nose-counting theory of the Eighth Amendment, which I think is generally a flawed methodology regardless of which way it cuts, I'm not sure I agree that Congress's will as expressed in the UCMJ is less important in the counting game than any particular state. On one hand, you have Congress (the national legislature) legislating only for a small-subset of the citizens' whose conduct it may criminalize, where the purposes underlying the military justice system are in some ways different from those underlying the civilian justice system. On the other hand, a state statute applies to a different subset of American citizens and reflects the theoretical will of a small subset of the American public. To me, it's just a different way of slicing the pie, and neither is necessarily more important than the other and the value of each is really in the eye of the beholder. Hey, maybe that's why nose-counting might not be a good method of constitutional jurisprudence in the first place.

--John O.

Anonymous said...

Two things: I don't believe it's correct to say that confinement at hard labor isn't permitted in the states -- a few years ago chain gangs were brought back in the South, and I believe there's a sheriff in Arizona who puts his inmates to work. Thus far, no constitutional impediment to doing so.

Secondly, is there any precedent for the Court to examine federal law when checking for an emerging consensus?

John S. said...

Professor Young makes an interesting argument, but I'm not sure that the fact that the military has antiquated sex crimes laws, and more of them, means that the 8A analysis should not take them into account. Obviously different states have vastly different approaches to everything from sodomy to statutory rape to (as evidenced by Kennedy) rape of a child. The fact that one state legislature has enacted more draconian punishments for one of these offenses wouldn't take it off the table in the 8A analysis, so why should it have that affect on the military analysis?

As John O'Connor already stated, it would certainly be a different question in the context of Art. 134, but when there's no service connection to the UCMJ offense I think it has to be part of the calculation. Of course, the counter-argument would be that all crimes in the UCMJ are service connected, but I think that argument would run into a problem, given the Supreme Court's current (flawed) jurisprudence on that issue. In fact, the better argument might be that there are no citations to military cases prior to 1987, because until Solorio, the military shouldn't have been part of the analysis.

Anonymous said...

You may be right that there is little precedent for court's checking federal "statutes" for an emerging consensus, but your question emphasizing the examination of "statutes" puts form over substance. The broader question is about "societal standards" (and evolving ones, at that). Statutes are seldom updated and tend to be stale. Criminal statutes also tend to express a one-dimensional condemnation of a social ill, not a very sophisticated weighing of social values. So this kind of analysis can get wooden very fast.

Generally, however, courts frequently apply a federal standard. Courts import, implicitly, "societal standards," all the time.

The first and most notorious example of a "federal" standard trumping a state-by-state approach was in Dred Scott. Chief Justice Taney pronounced the Missouri Compromise unconstitutional because a law could not deprive a citizen of his liberty or property "merely because he came himself or brought his property into a particular territory of the United States." The Missouri compromise was the epitome of nose-counting, but it was trumped in Dred Scott by an implicitly "federal" standard.

Second, the Due Process Clause, by its very nature, is a "federal" standard that trumps a state-by-state approach. It deems to protect those liberties that are "so rooted in the traditions and conscience of our people as to be ranked as fundamental." Snyder v. Massachusetts, 291 U.S. 97, 105 . See Gitlow v. New York, 268 U.S. 652, 666: "freedom of speech and of the press...are among the fundamental personal rights and `liberties' protected by the due process clause of the Fourteenth Amendment from impairment by the States."

Third, the privacy right is essentially a federal right that trumps, year-after-year, state restrictions.

Fourth, in criminal law, the Supreme Court held in 1967 that “we cannot leave to the States the formulation of the authoritative ... remedies designed to protect people from infractions by the States of federally guaranteed rights.
Chapman v. California, 386 U.S. 18, 22 (1967)

I am arguing that incorporation (the legal doctrine by which the Bill of Rights, either in full or in part, is applied to the states through the Fourteenth Amendment's Due Process Clause) is essentially an application of a "federal" standard.

Fifth, under first amendment jurisprudence, the Miller standard of indecency is a "national" standard, specifically disclaiming a state-by-state approach.

Finally, military law has always been a different expression of societal values. For example, conscription is pretty clearly a form of involuntary servitude ("Of all the statist violations of individual rights in a mixed economy, the military draft is the worst. It is an abrogation of rights. It negates man's fundamental right — the right to life — and establishes the fundamental principle of statism: that a man's life belongs to the state, and the state may claim it by compelling him to sacrifice it in battle. Once that principle is accepted, the rest is only a matter of time." Yet the Supreme Court dodged this truism in Arver v. United States, 245 U.S. 366 (1918 by saying that the Thirteenth Amendment did not apply to conscription. Women's rights and gay rights are other examples where military law reflects retrogressive values. (And, without irony, that ignores the most basic fact that the military is in the business of killing people. This alone may excuse the institution from the discussion about societal values)

Anonymous said...

JOC partially wins me over this time. However, we often describe the military in Parker v Levy terms as a distinct and special world. It is for that reason that the assessment of what might be thought of as civilian crimes is different. In particular look at the CAAF analysis in Marcum, applying the civilian sodomy case of Lawrence v. Texas. That is not a"military" crime and is being analyzed differently in a military context.

Corey said...

John O'Connor,

As a minor quibble, adultery is not entirely a military offense. Criminal adultery statutes remain on the books in many states (and even have legal effect once in a blue moon).

Like you, I am no fan of the nose-counting approach (I usually call it "bean-counting," but the point is the same). However, insofar as that is the Court's methodology, military policy seems largely irrelevant. Nose-counting is supposed to be a proxy for a societal consensus. Thus, statutes that apply to all persons serve as a crude measure of social attitudes toward that punishment. When a policy is specifically targeted at the military, it is no longer an effective proxy for social consensus.

Looking at the child rape context, the fact that Congress and the President only sought fit to apply the death penalty to military cases is noteworthy. Why didn't they also apply the punishment to civilians? Congress had the power to enact a general law, so this is not like a state law which is universal in nature. It seems like the capital child rape case is a lot closer to the adultery example than you state. Sure, adultery is a different substantive crime in the military, but the 8th Amendment is about the punishment applied. Since adultery is rarely punished by substantial prison time in civilian life, it is very similar to child rape at the federal level (which is never punished with death).

Thanks to everyone for your comments. I will do my best to integrate them into my next draft.


Corey Rayburn Yung

John O'Connor said...

Thanks for the kind words, Prof. Yung. To clarify, I wasn't saying that adultery is by its nature a purely military offense. What I am saying is that the adultery criminalized by the UCMJ most assuredly is, as an element of the offense is that the adultery had a negative effect on good order an discipline or was service discrediitng. In that narrow circumstance, it seems to me that the military offense of adultery is sui generis.

No Man said...

While JOC may be right in a strict elements world that military adultery has a service discrediting/GOandD element, I think the way that military courts have interpreted the elements created by the President (don't get me started on that one) for adultery has in practice read out any additional requirement for service discrediting or prejudice to GOD apart from the act of adultery itself. One NMCCA decision went so far as to say the military had an interest in protecting the institution of marriage, in which case adultery alone seemed to provide the Court sufficient evidence or service discrediting conduct.