The Center for Children, Law & Policy at the University of Houston recently brought together a group of leading scholars to explore the connections and the tensions between “feminist jurisprudence” and “child-centered jurisprudence.” Audio from the conference is now available and video podcast will follow shortly. Publications from these presentations will be published next year in the Houston Law Review.

Agenda

Listen to Audio of the Presentations Below:

Polygamy and Child Welfare, Prof. Martin Guggenheim, Fiorello LaGuardia Professor of Clinical Law, New York University School of Law

Five Generations: Child Sexual Abuse and the Search for Transformative Justice, Prof. Angela P. Harris, Professor of Law; Executive Committee Member, Center for Social Justice, Boalt Hall, UC Berkeley

Voice, Vulnerability and Dependency: Politicizing Childhood, Prof. Annette Appell, Associate Dean of Clinical Affairs and Professor of Law, Washington University School of Law

Vulnerability Theory: Beyond Equality in Assessing the Interests of Mothers and Children, Prof. Martha Albertson Fineman, Robert W. Woodruff Professor of Law, Emory University School of Law

“A World Fit for Everyone:” The Role of Economic and Social Rights in Resolving the Tensions between Child-Centered and Feminist Jurisprudence, Prof. Barbara Bennett Woodhouse, David H. Levin Chair in Family Law, Director, Center on Children and Families, Fredric G. Levin College of Law

With Commentary by Prof. Ellen Marrus and Prof. Laura Oren of the University of Houston Law Center.

Children are currently fighting as soldiers in over twenty countries. Denied a childhood and often subjected to horrific violence, an estimated 200,000 to 300,000 children are serving as soldiers for both rebel groups and government forces. Physically vulnerable and easily intimidated, children typically make obedient soldiers and participate in all aspects of warfare. Many are recruited by force, and often compelled to follow orders under threat of death.

The bill as enacted earlier this month seeks to accomplish this by the following:

The Child Soldiers Accountability Act makes it a federal crime to recruit knowingly or to use soldiers under the age of 15 and permits the United States to prosecute any individual on US soil for the offense, even if the children were recruited or served as soldiers outside the United States. The law imposes penalties of up to 20 years, or up to life in prison if their action resulted in the child’s death. It also allows the United States to deport or deny entry to individuals who have knowingly recruited children as soldiers.

Opinio Juris: Universal Jurisdiction in the US for Child Soldiers

However, since the ruling, a legal blogger has pointed out that the federal government passed a law in 2006 allowing for this use of the death penalty in the military. Amazingly, the plaintiff, the defendant, the Court Majority and the Dissent all failed to mention this law during the arguments and the decision of the case. As a result, the state of Louisiana is requesting that the Court reconsider its ruling since the discovery of a federal law allowing this use of the death penalty may undermine the Court’s argument of a national consensus against it. However, Louisiana recognized that even if the Court agrees to reconsider its ruling, the ruling may still be upheld due to the Court’s independent judgment against this use of the death penalty.

Please click here to see the Petition for Rehearing.

From the SCOTUSblog:

The state of Louisiana on Monday asked the Supreme Court to reconsider its ruling a month ago striking down the death penalty for the crime of child rape. The rehearing petition, citing an omission in the Court’s opinion of any mention of a federal law on that issue, was filed late Monday afternoon. The petition in Kennedy v. Louisiana (07-343) can be found here.

Noting that the Court “almost never grants petitions for rehearing,” the state’s filing said this was “the rare exception.” It cited an 1875 ruling (Ambler v. Whipple), saying that an omission “material to the decision of the case” makes “a strong appeal for reargument.”

The petition said that either the rehearing should be granted, or the Court should “first seek the views” of the U.S. Solicitor General. Earlier, after the discovery of the omitted statute from the Court’s opinion, the Solicitor General’s office said that, if a rehearing plea were filed, it would examine it and “consider what steps are appropriate.”

Under the Court’s rules, a rehearing petition is not subject to oral argument and will not be granted except by a majority of the Court “at the instance of a Justice who concurred in the judgment or decision.” The other side in a case is not allowed to file a response, unless the Court specifically asks it to do so. The Court’s rules add that, unless there are “extraordinary circumstances,” rehearing will not be granted unless a response is first requested.

The decision in the Louisiana case, issued on June 25, came on a vote of 5-4, with Justice Anthony M. Kennedy writing for the majority. One of those five would have to support rehearing, presumably along with the four dissenters, for that to happen.

The Court’s decision had two parts: a survey of laws and official actions, leading the Court to conclude that there was a consensus against the death penalty for child rape, and a separate expression of the Court’s own “independent judgment” about whether capital punishment should ever be available for a crime that did not result in the victim’s death — a point on which the Court said no.

In the first part, the Court noted the absence of any federal law imposing a death penalty for child rape. After the decision was issued, a military law expert noted that omission. The expert noted a 2006 law by Congress which, the expert said, authorized the death penalty for rape of a child under military law — the law that prescribes crimes and penalties for members of the military services.

A spate of publicity, beginning in The New York Times, led the U.S. Solicitor General’s office to notify the Court of the omission, and to offer to comment on it, if asked. The government was not a party in the case, but it said it should have noticed the fact of the federal law’s existence and told the Court.

Monday was the deadline for Louisiana to seek rehearing of the case. It did so in a petition signed by counsel of record, Georgetown law professor Neal K. Katyal.

The death row inmate involved in the case, Patrick Kennedy, was represented by Stanford law professor Jeffrey L. Fisher. On Monday, responding to media inquiries, Fisher issued a statement saying the 2006 provision could not have applied to a civilian like Kennedy, and, in any event, that provision may not even remain valid.

The rehearing plea said that the omission would bear not only on the Court’s discussion of a “national consensus” against the death penalty for child rape, but also would have an effect on the part of the ruling in which the Justices relied on “independent judgment.”

Louisiana conceded that the Court might reach the same decision again if it reheard the case, but said rehearing was warranted because that “protects the public’s trust that the Court has before it all relevant information before reaching a final decision,” it “safeguards the perception of fairness,” and it “ensures that the Court’s final decision accurately reflects the state of facts and the law.”

If the Court believes that its decision could stand alone on the exercise of “independent judgment,” that should still lead to rehearing, because, the petition argued, that would make the “national consensus” calculus less important in future cases on applying the death penalty.

A denial of rehearing, the petition argued, would sow confusion about which side of the Court’s calculus weighed the most.

This case is pretty straightforward; however, it seems somewhat reminiscent of a less straightforward case reported by The Wall Street Journal three weeks ago about the debate over the right of parents to reject medical treatment for their children due to religious reasons.

The recent death from untreated diabetes of an 11-year-old Wisconsin girl has invigorated opposition to obscure laws in many states that let parents rely on prayer, rather than medicine, to heal sick children. Dale and Leilani Neumann of Weston, Wis., are facing charges of second-degree reckless homicide after their child, Madeline Kara Neumann, died on Easter after slipping into a coma. The death, likely preventable with insulin, has renewed calls for Wisconsin and dozens of other states to strike laws that protect parents who choose prayer alone in lieu of medical treatment.

Of course any decision would require states to walk a fine line between the freedom of parents to practice their religion and the responsibility of parents to take care of their children’s needs. Although they vary widely by state, 45 states currently have some sort of legal protection for parents who use spiritual healing. Some provisions uniformly protect parents from prosecution for solely pursuing spiritual healing for their children while others only protect parents from prosecution for said actions in misdemeanor cases. However, the article notes that states are slowly starting to rethink these statutes, opening parents who rely solely on spiritual healing to possible prosecution for child neglect and, in the Wisconsin case, reckless homicide. Some of these laws leave an important question hanging that states must resolve: “If a state permits people to employ prayers for healing, can it then hold a parent criminally liable if those prayers fail?”

Sources:

Wall Street Journal: A Child’s Death And a Crisis for Faith

ABC News: Mom Accused of Withholding Son’s Chemo

As is too often the case, the analysis of the opinion in the media distorts what was actually decided or even what was at stake. Supreme Court opinions are often treated as being about (1) what the policy should be, rather than (2) who should set that policy. We shouldn’t come down on commentators too hard for conflating these issues, however, as even the Justices tend to get this confused from time to time. The fundamental disagreement in this 5-4 decision is that five Justices thought the case primarily about number (1) - categorically prohibiting death penalty in child rape cases - and the other four thought it primarily about number (2) - allowing state legislatures to set punishments within constitutional bounds.

Ever Evolving Standards of Decency

Much of the majority’s opinion is spent justifying its determination of the ‘evolving standards of decency’ by reference to “objective indicia of society’s standards, as expressed in legislative enactments and state practice with respect to executions.” We don’t have to look very far into our history books to know that our sense of decency has indeed evolved -

Two Centuries’ Growth of American Law, 1701-1901 By Yale Law School

The logic, however, of a court striking down a law passed by a democratically elected legislature based on a perceived consensus of democratically elected legislatures, seems bafflingly circular. What more appropriate measure of society’s standards than the collective statements of its duly elected representatives? That the majority finds it necessary to usurp that position for the sake of uniformity displays a preference for setting rules rather than setting boundaries. But here I’m just poorly paraphrasing Justice Alito’s dissent, who is left surmising, as am I, at the true policy behind the court’s ruling (see II B for his best guess).

Whose best interests?

It is, of course, entirely possible for statutes to be both Constitutional and terrible laws that hurt the people it’s designed to protect and there is good reason to believe that imposing the death penalty in cases of child rape imposes costs as well as confers benefits on child victims. In no other area of the law are unintended consequences so prevalent or so devastating and in its affect on children. Here are a few unintended consequences that imposing the death penalty in child rape cases might have created -

1. Incentive to kill ones victims - the death penalty’s power of deterrence, though hotly debated, is the most obvious benefit to the victim. The specter of death, we believe, if proportional, encourages criminals to limit the damage they cause. If a child rapist is subject to death for the rape, there is no further incentive not to kill his young victim in order to cover up evidence of the crime.
2. Discouraging Reporting of Child Rape - children are most frequently abused sexually by family members. Child victims may choose not to report rape because they fear that the rapist will be put to death. The tremendous guilt felt by victims remains for me the most stunning and tragic aspect of childhood sexual assault and may be magnified when the death penalty is imposed.
3. Discouraging Cooperation in Prosecution by Child Victim - the Sixth Amendment’s confrontation clause requires the defendant have the right to confront and cross-examine witnesses. This can exacerbate an already bad situation for child victims who must often relive the trauma of the event in full court and in front of their attacker. The delicate balance walked by courts in protecting constitutional rights of defendants and avoiding any further harm to the victim/witness is further stressed in capital trials.
4. Denying Opportunity for Closure or Explanation - an unexpected argument, raised in my colleague’s post here is the common desire among victims for explanation, apology, or other mechanisms of closure that is potentially lost if the assailant is put to death.

For policy makers the balancing of consequences and benefits is an uneasy and inexact science, but a task more appropriately performs by state legislatures. Most, I suspect, would find the cost of imposing the death penalty outweighs its benefits or that it would be imposed in a manner that, like Texas’ Penal Code § 12.42(c)(3) was reserved for repeat or habitual offenders.

In my opinion, this will never, fortunately or unfortunately, be the biggest problem facing children in our nation. Far more children will lose their lives to disease, inadequate nutrition and health care and outright neglect. Others will soon be caught in the very same legal system that here debates the best method of their protection. However, we should use the Kennedy case as a reminder that legal issues involving children are seldom as clear-cut as they seem and only a diligent and holistic approach to children’s rights can truly reflect their best interests.

Landmark Cases in the Supreme Court’s Death Penalty Jurisprudence

• Kennedy v. Louisiana, 554 U. S. ____ (2008) (holding that the Eighth Amendment bars states from imposing the death penalty for the rape of a child not resulting in death)
• Roper v. Simmons, 543 U. S. 551 (2005) (execution of juveniles violates the Eighth Amendment because the offender has a diminished personal responsibility for the crime)
• Atkins v. Virginia, 536 U. S. 304 (2002) (the execution of mentally retarded persons “cruel and unusual punishment” prohibited by the Eighth Amendment)
• Enmund v. Florida, 458 U. S. 782 (1982) (capital sentence of a defendant who aided and abetted a robbery during which a murder was committed but did not himself kill, attempt to kill, or intend that a killing would take place violates Eighth Amendment)
• Furman v. Georgia, 408 U. S. 238, 382 (1972) (held that the death penalty could not be administered in a capricious or discriminatory manner)
• Coker v. Georgia, 433 U.S.584 (1977) (held death penalty disproportionate to the rape of an adult woman and did not result, or was not intended to result, in the victim’s death)
• Trop v. Dulles, 356 U. S. 86, 101 (1958) (plurality opinion), (noting that the Amendment “draw[s] its meaning from the evolving standards of decency that mark the progress of a maturing society.”)
• Weems v. United States, 217 U. S. 349, 367 (1910) (the Eighth Amendment’s protection against excessive or cruel and unusual punishments flows from the basic “precept of justice that punishment for [a] crime should be graduated and proportioned to [the] offense.”)

Acknowledging that the rape of a child is a most heinous crime, Justice Kennedy notes early that punishment is primarily about retribution and what this application of the death penalty says about our culture. (Please note that all quotes are pulled from the court decision.)

“When the law punishes by death, it risks its own sudden descent into brutality, transgressing the constitutional commitment to decency and restraint… We cannot dismiss the years of long anguish that must be endured by the victim of child rape… It does not follow, though, that capital punishment is a proportionate penalty for the crime.“ 

The decision also addresses claims by the law’s proponents that the death penalty somehow helps the victim’s healing process whereas NASW insists the process could increase the psychological distress experienced by victims. 

“It is not at all evident that the child rape victim’s hurt is lessened when the law permits the death of the perpetrator. Capital cases require a long-term commitment by those who testify for the prosecution… Society’s desire to inflict the death penalty for child rape by enlisting the child victim to assist it over the course of years in asking for capital punishment forces a moral choice on the child, who is not of mature age to make that choice. “

The NASW statement also references the well-established fact that the majority of childhood sexual assault is perpetrated by relatives or close family friends, making it far less likely that a child or her guardian will report the assault.  Hence, the abuse continues if not with the original victim, with other children.  Longterm abuse is documented as traumatizing to children and the adults they become; increasing the likelihood of teen pregnancy, drug abuse, mental health problems and other malidies.  The court agreed with the social workers, stating…

“With respect to deterrence, if the death penalty adds to the risk of non-reporting, that, too, diminishes the penalty’s objectives. Underreporting is a common problem with respect to child sexual abuse….one of the most commonly cited reasons for nondisclosure is fear of negative consequences for the perpetrator, a concern that has special force where the abuser is a family member.”

Last but certainly not the least concern of advocates for children, is the fear that laws such as the one in Louisiana — and Texas — will remove a major deterrant against killing young victims of sexual assault.  To this Justice Kennedy states,

“Assuming the offender behaves in a rational way, as one must to justify the penalty on grounds of deterrence, the penalty in some respects gives less protection, not more, to the victim, who is often the sole witness to the crime.”

 In closing, Kennedy adds…

“Each of these propositions, standing alone, might not establish the unconstitutionality of the death penalty for the crime of child rape. Taken in sum, however, they demonstrate the serious negative consequences of making child rape a capital offense.”

Two additional considerations are mentioned by the social workers but not the justices.  How the victim personally receives the message sent by capital punishment and the lost opportunity for resolution can both significantly hinder recovery.

The negative psychological impact of a law that tells a survivor that her experience is equal to that of a murder victim can in itself be disabling.  The underlying message that the child survivor receives is that she – as if murdered – is irreperable and might as well be dead. 

NASW also references the healing potential of future discussions between assailant and survivor.  A potential that might be lost if the assailant is put to death. 

I know the pain of realizing that the man who molested a naive teenager promising to never do it again, in fact did.  I also know the power, years later, in telling him of the anger and anguish; and hearing the reply “I’m so sorry.”   I thank the court for preserving this healing opportunity for other survivors and for seeing beyond conservative rhetoric toward a decision that is truly in the best interest of children.  

The American Civil Liberties Union (ACLU) ACLU of Louisiana and NAACP Legal Defense and Educational Fund also submitted an amicus brief regarding the disproportionate number of African American men who receive a death penalty sentence under existing laws. Worth reading and a mention here, the court however made no reference to these concerns in its decision. What impact the Kennedy v Louisiana decision might have on the Texas law — which has some restrictions not in the Louisiana version — is yet to be seen.

The Court’s Opinion found at: http://www.scotusblog.com/wp/wp-content/uploads/2008/06/07-343.pdf

New York Times Article on the case: http://www.nytimes.com/2008/06/26/washington/26scotuscnd.html?_r=1&hp&oref=slogin

The American Civil Liberties Union filed a federal lawsuit against the Texas Youth Commission on Thursday, accusing it of subjecting its female offenders to unwarranted solitary confinement, routine strip searches and brutal physical force.

According to the brief, incarcerated girls are “frequently subjected to punitive solitary confinement in oppressively cold, concrete and cinderblock cells containing nothing more than a metal slab intended for use as a bed, and in some cases, a metal toilet.”

The girls, many of whom suffered sexual abuse in the past, are also regularly strip-searched, the lawsuit alleges. Those who resist the searches are subjected to extreme force, including being pepper sprayed in the face or being bound in leather straps, the ACLU argued in its 19-page brief.

Constitutional rights

The ACLU filed its class-action lawsuit in the U.S. District Court of the Western District of Texas on behalf of five girls currently incarcerated at the Ron Jackson State Juvenile facility in Brownwood.The ACLU accused the state’s correctional agency, which last year was rocked by a massive abuse scandal, of violating the constitutional rights of its minor clients, all of whom suffered sexual, physical or emotional abuse prior to incarceration.

Dismayed TYC officials charged the ACLU with failing to recognize the progressive reforms the agency’s new leadership has instituted as part of the shake up that followed last year’s scandal.

“It would be nice to work with ACLU as partners,” said TYC spokesman Jim Hurley, noting TYC has made some dramatic changes in the last year. “TYC is not the same TYC it was a year ago.”

Certain conditions common

But Hurley acknowledged that notwithstanding certain reforms, many of the conditions cited in the brief could be found on any given day at TYC units throughout the state.”If kids are on a work detail in the cafeteria, before they go back to their dorm, I’m sure they’re (strip) searched, to make sure there is no contraband, no weapons,” Hurley said. “These are things that are done across the board.”

He said he believes the lawsuit could have been avoided with a simple phone call from ACLU attorneys. “It’s likely there are things in there that are already on the board ready to be revamped,” he added.

Hurley said addressing the special needs of the 150 or so female offenders had become one of the biggest priorities of the agency’s new conservator, Richard Nedelkoff. He indicated that the agency might take a hard look at the practice of strip-searching females.

An attorney for the ACLU said that while the agency had taken some important steps, patience is running low.

“In the interest of our clients, we just felt we couldn’t wait any longer,” said Lisa Graybill, legal director of the Texas ACLU.

The agency became the subject of national news reports last year amid allegations that top officials turned a blind eye to evidence that youth had been or were being sexually and or physically abused by staff at a number of facilities around the state.

Source: Sandberg, Lisa. ACLU Sues State Juvenile Prison System. Houston Chronicle, June 12, 2008.