The Supreme Court hears argument tomorrow in Kennedy v. Louisiana, a case testing the Constitutionality of Louisiana’s child-rape death penalty statute. In 1977′s Coker v. Georgia the Supreme Court struck down Georgia’s death penalty statute, holding that the death penalty is an unconstitutionally disproportionate punishment for “the rape of an adult woman.” Ever since then the question left open by the opinion has gone unanswered: Is the death penalty also disproportionate for the rape of a child?

Louisiana is one of six [...]]]> March 27th marked six months in the United States without an execution. For a nation that executed nearly 100 of its citizens only 9 years ago, this is a pretty amazing feat that has gone largely unnoticed in the popular press.

The Supreme Court hears argument tomorrow in Kennedy v. Louisiana, a case testing the Constitutionality of Louisiana’s child-rape death penalty statute. In 1977′s Coker v. Georgia the Supreme Court struck down Georgia’s death penalty statute, holding that the death penalty is an unconstitutionally disproportionate punishment for “the rape of an adult woman.” Ever since then the question left open by the opinion has gone unanswered: Is the death penalty also disproportionate for the rape of a child?

Louisiana is one of six states that permits the imposition of the death penalty for child rape. The state argues that the Supreme Court should focus not on the absolute number of states punishing child rape with death, but on the trend. Even there, Louisiana is on pretty shaky ground. There is hardly a groundswell among the state legislators for expanding the death penalty and the behaviors of juries and prosecutors is even starker. As petitioner points out in the first line of his brief: “Petitioner Patrick Kennedy is the only person in the United States who is on death row for a non-homicide offense.” It has been over forty years since an American was executed for a non-homicide crime.

Whatever the Court does with Kennedy’s case, it is unlikely to tell us too much about the future of the death penalty in the United States. The lethal injection cases are likely to be more telling, and even they are unlikely to create a watershed precedent. Still, lots of us will be looking to the Supreme Court for hints. With the Court invalidating the both juvenile death penalty and the execution of the mentally retarded in recent years, three cases might be taken as a trend. If six can be a trend, why not three?

The National Lawyer’s Guild, which opposed efforts to fire Ward Churchill at the University of Colorado, has called for Yoo to be fired. Obviously, the two situations are not identical. Churchill’s views were “merely” unpopular and the investigation into his background would never have taken place but for the outrageousness of his speech. By contrast, Yoo’s speech has led to tangible results, results that the NLG claims constitute war crimes.

Brian Leiter, who was a defender of Churchill’s right to speak his mind has [...]]]> I am not a first amendment lawyer nor am I well-qualified to write about academic freedom, but I have been intrigued by the discussion of whether John Yoo can or should be fired in connection with his authorship of the infamous torture memo.

The National Lawyer’s Guild, which opposed efforts to fire Ward Churchill at the University of Colorado, has called for Yoo to be fired. Obviously, the two situations are not identical. Churchill’s views were “merely” unpopular and the investigation into his background would never have taken place but for the outrageousness of his speech. By contrast, Yoo’s speech has led to tangible results, results that the NLG claims constitute war crimes.

Brian Leiter, who was a defender of Churchill’s right to speak his mind has come to Yoo’s defense while making his distaste for Yoo’s views clear. I think that I fall into the same camp. As a Boalt alum I am embarrassed to have my alma mater associated with Professor Yoo’s legal advice to the Bush administration. Yet I am proud of Dean Christopher Edley for coming to his colleague’s defense:

“My sense is that the vast majority of legal academics with a view of the matter disagree with substantial portions of Professor Yoo’s analyses, including a great many of his colleagues at Berkeley,” Edley wrote. “If, however, this strong consensus were enough to fire or sanction someone, then academic freedom would be meaningless,” he added.”

[Cross-Posted on MoneyLaw]

I am at the earliest stages of putting together a Criminal Procedure casebook. This task has required me to reflect on my own teaching of the course and to question a lot of what I do and say in the course. I have never been terribly happy teaching Criminal Procedure; I find that the class lacks any [...]]]> As has been noticed, there are a lot of us criminal law types here this month. There also seems to be, with the exception of the fascinating case that Daniel Solove noted the other day, a relative dearth of criminal law and procedure questions percolating through the courts at the moment. So I thought I would take advantage of this moment for purely selfish purposes.

I am at the earliest stages of putting together a Criminal Procedure casebook. This task has required me to reflect on my own teaching of the course and to question a lot of what I do and say in the course. I have never been terribly happy teaching Criminal Procedure; I find that the class lacks any organizing principles and that the doctrines come across as very results-driven and fact-specific. Unlike Criminal Law which I truly enjoy teaching, Criminal Procedure has often felt like a chore. I’m hoping that this project helps change that.

So I’m not going to ask you to organize Criminal Procedure for me or to outline my book. But I am curious what those of you out there who teach Criminal Procedure like or loathe about doing so. Is there a particular case or doctrine that gets you energized? Is there some part of the class that you feel compelled to teach even though you detest either the leading case, the result, or the reasoning? After the jump, my thoughts.

My favorite case in Criminal Procedure is Colorado v. Connelly. I think the facts make the students confront the central question in the Court’s Fifth Amendment jurisprudence: Is the appropriate inquiry into government coercion or the voluntariness of confessions. The police work in the case seems exemplary; at least as described in the reported case, the officer tries to keep Connelly from confessing to homicide but cannot. So if the focus is on coercion, there is exactly none. By contrast, there are lots of reasons to be concerned about the voluntariness of the confession; Connelly was hearing the voice of God commanding him to confess. The case also lets me make my favorite point of the semester: God is not a state actor.

By contrast, the automobile cases are the nadir for me. It’s hard to get excited about distinguishing the 13 ways that police can search a car: “Ok, this case is decided on the basis of the automobile exception. But notice that it could also have been decided as a search incident to arrest, or as an inventory search, or as a plain view search, or as….” I know I will have to cover these cases in the new book, and I can’t for the life of me come up with a way to make them fresh. Any thoughts?

What’s curious about this case to me is that, although the Supreme Court has asked the parties to brief [...]]]> I posted on Monday about the Supreme Court’s grant of cert in Pearson v. Callahan and its request for briefing on the question of whether to overturn Saucier v. Katz. For those of you who don’t follow qualified immunity law closely (are you really out there???) Saucier required federal courts consider Section 1983 and Bivens actions to consider the merits of the plaintiff’s claim before turning to the proffered defense of qualified immunity. Saucier has been unpopular with both lower federal courts and many of the Justices of the Supreme Court (*shameless plug* for a defense of Saucier, see my forthcoming article. *end plug*)

What’s curious about this case to me is that, although the Supreme Court has asked the parties to brief the question of whether Saucier should be overturned, I can’t imagine why either the petitioner or the respondent would care about that question. Saucier’s ordinal mandate perhaps helps plaintiffs in the long run because it requires federal courts to establish federal law rather than simply saying that the federal issue is a close one and that therefore the defendant wins on qualified immunity. Saucier is also probably defendant unfriendly in the long run because it keeps them in civil rights cases longer and likely makes it easier for plaintiffs to recover against them. (Of course, it’s also possible that law-abiding public officials want to know what that law is so that they can conform their conduct to it, but that’s a conversation for another day.)

In the context of an ongoing case, however, the parties before the Court don’t really care whether Saucier is overturned or not. Saucier is a procedural requirement imposed on the lower federal courts not the enunciation of either a right or a remedy; however the Court resolves the Saucier question, its resolution of that question will not affect these parties in the least. Perhaps the benefit to the Court of asking for briefing on this issue is the hope that it will induce the repeat players — the ACLU, police unions, etc. — who do have an interest in the outcome of the Saucier question to submit amicus briefs on the subject.

Still, I find it interesting that the usual standing considerations seem inverted here; it is only those without a stake in this litigation — amicus curiae — who have an interest in the real question the Court seems concerned with.

I want to start with a word about a case in which the Supreme Court granted certiorarari on last week. In #07-751, Pearson v. Callahan, the Supreme Court granted cert on the Fourth Amendment question presented but also asked the parties to brief the following question:

“Whether the Court’s decision in Saucier v. Katz, 533 U.S. 194 (2001) should be overruled?”

In Saucier the Supreme Court had mandated that when a federal court considers a qualified immunity case, it must decide the merits of a plaintiff’s constitutional claim before turning to the defendant’s assertion of qualified immunity. The Supreme Court has stated [...]]]> Thanks to Dave and the rest of the authors here for inviting me to guest this month. I’m really looking forward to it.

I want to start with a word about a case in which the Supreme Court granted certiorarari on last week. In #07-751, Pearson v. Callahan, the Supreme Court granted cert on the Fourth Amendment question presented but also asked the parties to brief the following question:

“Whether the Court’s decision in Saucier v. Katz, 533 U.S. 194 (2001) should be overruled?”

In Saucier the Supreme Court had mandated that when a federal court considers a qualified immunity case, it must decide the merits of a plaintiff’s constitutional claim before turning to the defendant’s assertion of qualified immunity. The Supreme Court has stated that this order-of-decisionmaking rule encorages the development of constitutional law and provides crucial guidance to official actors regarding what the Constitution requires of them.

Saucier has not been popular with lower federal courts or with a number of members of the Court itself. In a forthcoming article in the George Mason Law Review I urge the Court not to overturn Saucier. I take issue both with those who argue against Saucier on prudential grounds and those who argue that deciding the substantive question before the immunity quesiton violates Article III’s ban on advisory opinions.

In this article, a follow-on to a piece I wrote in 2002 I argue that if the Supreme Court were to either permit courts to resolve the remedial question first (as it has in the ineffective assistance of counsel context) or to require federal courts to do so (as it has in the habeas corpus context) then lower court judges will inevitably skirt important constitutional questions and the law will be denied definition and clarity. I argue that the merits of claim should be bypassed only where it is clear a priori that the plaintiff will not be entitled to a remedy.