Here at the Glom, we love to post about Supreme Court cases that affect the world of business and securities law.  When the Supreme Court hands down landmark opinions on such constitutional law jewels as the right to bear arms (Heller) and the death penalty (Kennedy), we generally let the blogospheric experts have the limelight for awhile.  However, we have blogged on the death penalty for rape before and I devoted an episode of Illinois Law (Illinois College of Law's biweekly television show) to the death penalty this past spring.  Therefore, I thought I had enough to cred to jump into the fray on this one sidepoint:  If you are a progressive, liberal voter who is looking for a progressive, liberal candidate who will appoint liberal, progressive judges, do you hope the candidate is happy or unhappy about Kennedy v. Louisiana (death penalty is unconstitutional punishment for rape of child)? 

In other words, should Obama applaud the opinion or bemoan it?  Obama has shown disappointment at the decision, which has left him open to criticism from both sides.  Ann Althouse asked why, if Obama really wants a justice who goes with her "heart," then shouldn't he think Kennedy went with his heart here?  But of course, couldn't going with your heart make you give the person who raped a child the highest penalty possible?  Which is the heart thing to do?

I find this an interesting question because several years ago, I was on a jury panel for a criminal case in Milwaukee in which the defendant was on trial for sexual assault of his own 4 year-old daughter.  The defendant was poor and African-American.  The claims were made by the mother, a year after the date of incident, during custody proceedings.  I was very interested to see what the prosecutor and defense attorney would do with me.  I had a 4 year-old daughter at the time.  The questions they asked about my legal background revealed that I had worked on death penalty defense cases.  I was a law professor with Birkenstocks on.  I was obviously a progressive liberal.  Would I be easy or hard on the defendant?  The case settled before the second round of voir dire began, so we'll never know.

The Kennedy case creates some strange tensions:  most legal reformers who want enhanced penalties for rape and more protection of victims probably aren't pro-death penalty.  The Venn diagram intersect of those who want the death penalty expanded and those who work to decrease sexual assault, even for children, is probably fairly small.  In addition, If you read the briefs in Kennedy v. Louisiana, you'll see it's not an easy case.  One can imagine a case in which the perpetrator is a repeat rapist and murderer who abducts a child, brutalizes and beats the child, then leaves the child for dead.  There, the fact that the perpetrator wouldn't be subject to the death penalty because the child didn't die seems fairly arbitrary.  However, in this case, the facts aren't open and shut, and there is a lot of ambiguity there. 

Patrick Kennedy has an IQ of 70.  The victim, his eight-year-old step-daughter, initially said that she was raped by someone matching the description of a boy in her neighborhood.  Twenty months later, she said that she was raped by her stepfather, who had been arrested two weeks after the rape.  In the intervening time, authorities had threatened to take the child away from her mother if the mother did not believe the state's theory of the case.  On the other hand, the defendant tried to schedule an emergency carpet cleaning the morning of the rape to get blood out of the carpet, which he claimed was the result of the victim's "becoming a young lady."  He was also found trying to clean the carpet himself when the police arrived.  What is undisputed is that the victim was savagely raped, requiring surgery.(Neither supreme court brief mentions any scientific evidence, such as DNA, or any information from a sibling, who seems to have been at home.)  Although the Supreme Court was not weighing the facts of this case to determine whether the evidence supported the verdict or the sentence, surely the facts of the case affect decisionmaking somehow.

So, does the progressive, liberal heart go out to the young girl or to the future defendants who will face the death penalty?  Hard to say.  I think Obama would have liked to say that he was relieved that the use of the death penalty, which he has criticized, would not be expanded.  That he was glad that the revival of the death penalty for rape, which has its roots in a racist Southern history, was not successful.  But then, wouldn't his critics get to pounce on him for not caring about little girls?  About children?

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