The University of Chicago Law School Faculty Blog

Executing child-rapists

Constitutional doctrine relating to capital punishment is (in)famously tangled.  That said, one proposition that, I suspect, most who litigate, teach, or write in the area have long thought -- since Coker v. Georgia (1977), anyway -- one could take to the bank is that the death penalty is an unconstitutional punishment for non-homicide crimes.  The New York Times is reporting, though, that the Louisiana Supreme Court has "upheld the death sentence of a man convicted of raping an 8-year-old girl.  Legal experts say the man, Patrick Kennedy, is the only inmate on death row in the United States who was not convicted of committing or participating in a killing."

It is quite likely that the Supreme Court will review the Louisiana court's decision.  In Coker, the Justices ruled that the death penalty for "the rape of an adult woman" is "grossly disproportionate and excessive punishment" and "therefore forbidden by the Eighth Amendment as cruel and unusual punishment."  Can the same be said -- should the same be said -- of the death penalty for the rape of a child?

Volunteering for execution

The term "death-row volunteer" probably sounds strange -- do people really "volunteer" to be on death-row? -- but, nonetheless, it describes reasonably accurately a not-insubstantial number of those convicted murderers who have been executed in the United States since 1976.  (For more detail on the death-row-volunteer issue, see this paper of mine from a few years ago.) 

Today, the indefatigable Howard Bashman reports, the en banc United States Court of Appeals ruled that Robert Charles Comer, who was sentenced to death in Arizona, was "competent" to waive further proceedings relating to his federal habeas corpus petition and that he had, in fact, "voluntarily" waived those proceedings.  In a nutshell, the Ninth Circuit ruled that, notwithstanding the possibility that legal errors had infected his capital-sentencing proceedings, Comer could prevent judicial correction of those errors by "volunteering" to be executed, in accord with his death sentence.  (The court rejected the argument, advanced by Comer's counsel -- who were arguing, obviously, against Comer's stated wish to volunteer -- that Comer's "volunteering" was the product of harsh prison conditions.)

What should we think about this case?  How should we think about death-row volunteers generally?

Harcourt: "The Mentally Ill, Behind Bars"

The Mentally Ill, Behind Bars
By Bernard E. Harcourt
The New York Times
January 15, 2007

To see full study, see the PDF version.

LAST August, a prison inmate in Jackson, Mich. -- someone the authorities described as ''floridly psychotic'' -- died in his segregation cell, naked, shackled to a concrete slab, lying in his own urine, scheduled for a mental health transfer that never happened. Last month in Florida, the head of the state's social services department resigned abruptly after having been fined $80,000 and is facing criminal contempt charges for failing to transfer severely mentally ill jail inmates to state hospitals.

Ten days ago, the Supreme Court agreed to determine when mentally ill death row inmates should be considered so deranged that their execution would be constitutionally impermissible. The case involves a 48-year-old Navy veteran who is a diagnosed schizophrenic. In the decade leading up to the crime he was hospitalized 14 times for severe mental illness.

Executing the Insane

The United States Supreme Court has agreed to review a case, Panetti v. Quarterman, which presents a question about the constitutionally required standard for deciding when a convicted murderer is competent to be executed.  More than 20 years ago, in Ford v. Wainwright, the Justices -- though splintered -- ruled that the Eighth Amendment, which prohibits "cruel and unusual" punishment, does not permit the government to execute a prisoner who is, at the time of his execution, insane.  But what, exactly, does this requirement mean?

Panetti understands, apparently, that the state of Texas wants and plans to kill him.  He believes, though, that this is not really because of his conviction for fatally shooting his in-laws in the presence of his estranged wife and their 3-year-old child, but is instead really part of a conspiracy among the state and others to prevent him from preaching the Gospel.  So, is his awareness of what's coming enough to satisfy Ford?  Should it satisfy us?

Harcourt: Against Prediction

On Thursday, November 16, Professor Bernard Harcourt gave a talk in the Chicago's Best Ideas series entitled "Against Prediction: Punishing in an Actuarial Age." He has a new book out with a similar title (Against Prediction: Profiling, Policing and Punishing in an Actuarial Age) and presented part of this material to the students. The talk was a very interesting look at law enforcement profiling and whether it works. Professor Harcourt approached this empirically, disussing whether it works on a practical level, injecting a new element in a debate that is traditionally about morals and ethics.

You can listen to the talk here, and view the Power Point slides used in the presentation here. Download harcourt_against_prediction_powerpoint.ppt (The PPT slides will be very helpful in following along, as several charts and graphs are referred to.) The description used for the publicity is below the jump.

Alschuler on Ryan

At our annual Emeritus Luncheon on June 5, 2006, Professor Al Alschuler had a lot to say about the recent verdict in the George Ryan trial. Want to know why the verdict doesn't mean what the popular press said it means? Want to know why long trials are bad for justice? Want to know what Al thinks about RICO? You're just going to have to listen to the podcast. Instructions for the uninitiated are here.

Harcourt on WBEZ

On Monday, June 5, Bernard Harcourt, author of Language of the Gun: Youth, Crime, and Public Policy appeared on Chicago Public Radio's morning talk show Eight Forty-Eight. Listen to the segment as posted to the WBEZ Web site. You may recall that Professor Harcourt discussed a similar topic in a previous podcast. If that one intrigued you, you'll want to lean more by listening to this one.

Attention Felons: Reducing Gun Crime in Chicago

On May 10, 2006, Tracey Meares closed out our "Chicago's Best Ideas" season with a talk entitled "Attention Felons: Reducing Gun Crime in Chicago." The talk focused on an initiative started by Tracey and others to reduce the incidence of gun ownership by convicted felons by increasing their awareness that such ownership was illegal. The dramatic results of the program are explained in the podcast. You will likely want to follow along with the powerpoint presentation to see the data to which she refers.

The podcast may be heard here, the powerpoint is here: Download meares_cbi_slides.ppt. Instructions are here, the full blurb of the talk from the posters is after the jump.

Podcasting (as well as blogging) will be somewhat lighter over the summer, but we're looking forward to bringing you some very interesting archival items. Watch this space!

More Harcourt, This Time About Teens and Guns

Professor Bernard Harcourt delivered a fascinating Chicago's Best Ideas Talk on April 5, 2006, entitled "Language of the Gun:  A Semiotic for Law & Social Science." Professor Harcourt's talk was based on his recent book Language of the Gun: Youth, Crime, and Public Policy and covered some fascinating, if often disturbing, data from interviews with incarcerated teens about their opinions about guns. Professor Harcourt analyzes the particular language the teens use to talk about guns and the associations their words have, and what the implications are for public policy. WARNING: while this talk is certainly worth your time, it does include some explicit language (as Harcourt repeats some of the comments the study participants made) and violent subject matter. This may not be work-appropriate and is almost certainly not appropriate for young children.

You'll benefit from looking at Professor Harcourt's slides along with the talk, as some of the charts are discussed in detail, and the opening photos bring the talk into even clearer focus.Download harcourt_language_of_the_gun.ppt. You can listen to the talk here. Instructions on listening to the podcast are here. The blurb for Professor Harcourt's talk is below the fold (the text of this is a bit explicit as well).

Harcourt Podcast on Actuarial Justice

Professor Bernard Harcourt is a man of many talents. What you may not know is that one of those talents is fluency in French.  He recently appeared on a Radio France program called Le Bien Commun, an hour long program which is the leading in-depth talk-show on law and culture in France.  The program Professor Harcourt appeared on was titled "La Justice Actuarielle" (or "Actuarial Justice").  The other participant was Gilles Chantraine, who is a sociologist and CNRS member at the CESDIP (Centre de Recherches Sociologiques sur le Droit et les Institutions Pénales).  They discussed Professor Harcourt's forthcoming book, Against Prediction:  Profiling, Punishing, and Policing in an Actuarial Age. The book and radio program focused on the use of actuarial methods in the field of crime and punishment.  Actuarial methods refer to the use of statistical methods on large data sets of offenders to predict future dangerousness and to administer individual criminal justice outcomes. Such methods increasingly permeate the crime and punishment area--from parole decision-making and sentencing of sex offenders and other convicts, to prison classification and police profiling. While a handful of academics decry the rise of the actuarial in criminal justice, many citizens and policy makers today have embraced the trend. To many, it simply makes common sense to base the length of a criminal sentence on the likelihood of future recidivism or to identify which tax filers to audit on the basis of their likelihood of cheating. Professor Harcourt is a critic of the trend and offers, in the book and radio program, three specific critiques of the actuarial turn.

The radio program can be listened to (in French) here. Professor Harcourt's research and forthcoming book on the topic is summarized here. If that's not enough links for you, podcast instructions are here. If you would like to know more about the program Professor Harcourt appeared on and a related conference, information is below the fold.

The Special Prosecutor's Authority

In anticipation of possible indictments in the Plame investigation, commentators have recently expressed the hope that the Special Prosecutor Patrick Fitzgerald will not charge anyone with only cover-up offenses such as perjury or obstruction of justice. The idea is that Fitzgerald should pass on charging such offenses unless he can also charge the same person with a "substantive" crime, especially the crime that gave rise to the investigation, which (roughly) prohibits those with security clearances from knowingly disclosing a covert operative's status. Two days ago Sen. Kaye Hutchinson stated on "Meet the Press" that she hoped that, if there were an indictment, it would be "on a crime and not some perjury technicality." Nicholas Kristof makes essentially that point in today’s New York Times. In the Weekly Standard, Bill Kristol makes a similar but weaker point – that Fitzgerald should not bring a perjury charge unless it is "clear cut" nor any obstruction charge unless it is "willful and determined."