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Josephine Do, Do
7-25-2011
Plank
Government II: Analyses of Court Cases
Throughout our history, the U.S. courts have protected the freedoms of people whose political view,
religious beliefs, or ethnic backgrounds made them unpopular. The establishment of the judiciary branch
was unique in that its goal is to protect individual liberty from the tyranny of the majority. This branch of
government deals with 25 million cases annually with one American in every nine is directly involved in
litigation; with that said, the implementations and rulings manifested by virtue of the judicial branch
significantly affects us all. The deliberate and heavy uses of courts demonstrate the conflict we face as a
nation and the amount of faith we store in the judicial sector. Two such examples of the Federal Courts
and their executions as an all-powerful imperial judiciary are Boumediene v. Bush, a case dealing with
due process provisions and the writ of habeas corpus, and Kennedy v. Louisiana, a case dealing with
the 8th amendments cruel & unusual punishment provision.
Case 1:
Boumediene v. Bush was a court case that dealt with an Extraterritorial Reach of Writ of Habeas
Corpus through a Suspension Clause. National security, privacy and American politics in general have
taken an extreme turn in the unraveled events attributed to the current war on terror. This prolonged
war ushered a series of litigation in order to assess whether well- established and time-honored traditional
American principles, such as access to the courts, remain essential outside national borders. (The Oyez
Project at IIT Chicago-Kent College of Law) In response to the terrorist attacks of September 11, 2001,
the President Bush dispatched U.S. armed forces to Afghanistan to strike al-Qaeda base camps and
subdue the Taliban regime. Since the invasion, the U.S. military has taken thousands of prisoners, many
of them located in U.S. facilities in that theatre, while others were transferred to U.S. Naval Base at
Guantanamo Bay, Cuba. The president expressed his will to strip rights of Guantanamo prisoners who are
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not entitled to prisoner-of-war status under the Geneva Convention Relative to the Treatment of Prisoners
of War, 1949. (Turley) In 2002, several relatives of some prisoners filed habeas corpus petitions
challenging the legality of their imprisonment at Guantanamo. These prisoners did not challenge the
given authority of the President and the military to take suspected members of hostile forces into custody,
claiming that they had never been a combatant against the U.S. and have been denied the right to counsel
along with access to the court system. (Legal Information Institute- Cornell Law) The U.S. government
answered by urging the District Court to promptly dismiss the petitions, because they reasoned that
recognizing jurisdiction over the prisoners habeas claims would encroach the power of the Executive as
well as Congress. The Court heard this controversy in 2004 with court case Rasul v. Bushwhich held that
the federal habeas statute extends to detained prisoners by the U.S. military at the Guantanamo Bay
facility. These aliens were classified as enemy combatant in the war on terror by government officials,
with each petitioner denying they were affiliated with al Qaeda or the Taliban and seeking a writ of
habeas corpus to contest his detention before a federal court. (WilmerHale- firm defending Boumediene)
Initially dismissing all claims on the basis that it had no jurisdiction to consider habeas petitions filed by
aliens beyond the U.S. borders, the Supreme Court reversed the ruling in Rasul, affirming that the habeas
statute extended to noncitizen detainees an remanding the cases to the lower courts to decide the merits of
the plaintiffs claims. Two opposing conclusions came of two separate district court hearings on whether
aliens at Guantnamo had any constitutional rights that could be vindicated through a habeas petition.
While Congress passed the Detainee Treatment Act of 2005, which stripped the federal courts of
authority to hear habeas cases, the Supreme Court ruled that the jurisdiction-stripping provision of the
DTA did not apply to the pending case. (Federation of American Scientists) In response, Congress
enacted the Military Commissions Act, which eliminated federal courts jurisdiction to hear habeas
applications from detainees designated as enemy combatants in all cases and vacated and dismissed the
petitioners cases. The court held that the MCAs provision was not an unconstitutional suspension of
habeas corpus because aliens held by the United States in foreign territory do not have any constitutional
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right to habeas review. Thus, this Court must now confront grave questions concerning separation of
powers principles and the boundaries of the constitutional provision for the writ of habeas corpus.
With a 5-4 final vote, a five-justice majority decreed the following: 1] the MCA is interpreted to
deprive federal courts of jurisdiction over habeas petitioned by foreign citizens held at Guantanamo Bay,
2] the MCA is a violation of the Suspension Clause of the Constitution, 3] the detainees are entitled to the
protection granted by the Fifth Amendment and due process of law, and 4] the prisoners should be
permitted to challenge the adequacy of the judicial review provisions. (The Oyez Project at IIT ChicagoKent College of Law) The majority opinion was written by Justice Kennedy, in which he stated that if the
MCA is considered valid its legislative history requires that the detainees cases be dismissed, and the
procedures in the DTA are not adequate substitutes for the habeas writ. Being deemed enemy combatants
does not prohibit the rights to seek habeas. The Court thusly reversed the D.C. Circuits ruling in favor of
the prisoners. The Court recognized the given circumstances and found that no habeas case offered by
either party was directly on point. Instead, the Court relied on the fundamental principles of the writ,
which is of course to allow the courts to act as a check against the abuse of Executive power because
freedom from unlawful restraint as a fundamental precept of liberty. Justices Souter, Ginsburg, and
Breyer also concurred, with Justice Souter stating the application of the habeas statute to prisoners at
Guantanamo is consistent with the historical reach of the writ of habeas corpus and also pointed out the
extensive period of imprisonment (some exceeding six years).
The minority opinion was shared by Justices Roberts, Scalia, Alito and Thomas. Chief Justice
Roberts asserts that Congress has implemented a system that protects any rights possessed by detainees
and thus the Court should not be reviewing this case. On another note, Justice Scalia maintains that aliens
abroad are not and never should be given protection of habeas, asserting that the Suspension Clause has
no relevance for the prisoners. Justice Scalia also goes further and states that the majoritys decision
would almost certainly cause more Americans to be killed. (The Oyez Project at IIT Chicago-Kent
College of Law)In the dissenting opinion, Chief Justice Roberts argued that the DTA review process
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adequately protects any constitutional rights that detained enemy combatants abroad may enjoy. Chief
Justice Roberts also criticized the shapeless procedures defined by the majority opinion and states that
the court case was not really about the detainees at all, but about control of federal policy regarding
enemy combatants. Habeas is most fundamentally a procedural right, a mechanism for contesting the
legality of executive detention, he adds, The critical threshold question is.whether the system the
political branches designed protects whatever rights the detainees may possess. (Turley)
I believe that the Detainee Treatment Act of 2005 (DTA), an act that prohibits inhumane treatment
towards prisoners, is sufficient in upholding the granted and necessary respect and rights given to
detainees. Our country was established on a premise of liberty, equality, and democracy and continues to
be a paradigm for developed and developing countries. Though I believe that every individual should be
entitled to rights, legitimate rights should be not offered to the prisoners, convicts and especially alien
enemy combatants to the same extent as rights designated to law-abiding citizens of the state. This is not a
superiority clause or intended to be condescending in any way, but I strongly believe that rights should be
for those who earn it. Those prisoners held at Guantanamo Bay are taken from Afghanistan and Iraq and
they have good reason to be there. The truth of the matter is, if the circumstances were reversed and it
was U.S. soldiers who are detained, the al Qaeda and Taliban- operated regimes would have them killed.
To put it bluntly, I do not sympathize with alien enemy combatants, but I do recognize and respect the
principles our Founding Fathers enacted and thusly believe that the DTA adequately serves as a means of
justice for prisoners as such.
The judicial branch has previously scrutinized the Bush administrations war on terror policies, and
this court case was not an exception; the Court proclaimed Boumediene v. Bush an epic disaster that will
undoubtedly threaten the lives of Americans. The Court strongly criticized the President and Congresss
attempt to declare that because Guantnamo was outside the sovereign territory of the United States, the
Constitution did not apply. The Supreme Court held that foreign detainees at Guantnamo Bay Naval
Base in Cuba have the constitutional privilege of habeas corpus and such cannot be withdrawn except in
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conformance with the Suspension Clause and the Court held that the jurisdiction-stripping provision of
the Military Commissions Act of 2006 unconstitutionally suspended the writ. (Center for Constitutional
Rights)
Case 2:
Patrick Kennedy was convicted in Louisiana by a jury for aggravated rape of an eight- year old
step- daughter and was sentenced to death. Initially, he maintained he was not the doer but that two
teenage neighbors had raped her while he was caring for his son. Oyez (The Project at IIT Chicago-Kent
College of Law) The following was found at the hospital: a laceration to the left wall of the vagina had
separated her cervix from the back of her vagina, causing her rectum to protrude into the vaginal
structure. Her entire perineum was torn from the posterior fourchette to the anus. (Justice Kennedys
majority opinion) After much investigation, hours of interviewing, and aid of advanced technology,
Kennedy was found guilty of child rape. A Louisiana statute authorizes capital punishment for certain
non-homicide crimes, allowing the district attorney to seek the death penalty for defendants found guilty
of raping children under the age of twelve. After the prosecutor sought and the jury awarded, Kennedy on
appeal argued that the harsh punishment of death is excessive and unconstitutional under the Eighth
Amendment prohibiting cruel and unusual punishment and asserted that the statute does not adequately
narrow the class of death- eligible rapists. Despite the U.S. Supreme Court striking down the possibility
of a death sentence in a previous court case (Coker v. Georgia), in which an adult woman was raped, the
Louisiana Court affirmed the application of capital punishment, noting the that ruling did not apply when
the victim was a child. Louisiana is one in thirty-eight states that authorizes the death penalty; five of
these states (Louisiana included) authorize the death penalty for child rape, considered the most heinous
of all non-homicide crimes. (Death Penalty Information Center) While the majority of other states may
not grant the death penalty for child rape, fourteen states provide capital punishment for less heinous
crimes such as kidnapping or extreme drug trafficking. With reason, the court concluded that there was no
consensus direct way in determining whether death is an appropriate punishment for any crime, which
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does not result in the death of the victim. With the attention of this case, more states have been more
receptive to the imposition of capital punishment, or any crime that does not result in death for that
matter; four states have established laws, which would capitalize child rape since 1996.
The court secondly concluded that child rapists are among the worst of all offenders, and by
administering the death penalty among such convicts would serve both goals of retribution and
deterrence. (The Oyez Project at IIT Chicago-Kent College of Law) In addition, the Court deemed the
aggravated rape statute adequately narrows the class- eligible rapists by having the jury take into
consideration certain factors like age of the victim. Kennedy sought certiorari and argued that five states
do not constitute a national consensus for the analysis of cruel and unusual punishment by the Eighth
Amendment and furthermore, that Coker v. Georgia should apply to all rapes regardless of the age of the
victim. He dubbed the state courts ruling as inequitable in its application, singling out black child rapists
for death at a significantly higher rate than whites. Ultimately, the question that needed to be addressed in
the Court was whether states violate the Eighth Amendments ban on cruel and unusual punishment by
imposing the death sentence for the crime of child rape. (Duke Law)
The majority decision of 5-4 answered yes to the question, barring states from imposing such
extreme punishment for rape of a child in which the crime did not, nor was it intended to, result in death.
The majority reasoned that applying such a penalty would be an exercise of cruel and unusual punishment
in violation of a national consensus. Justice Anthony Kennedy delivered the majority opinion of the
Court. The Eighth Amendment, applicable to the states through the Fourteenth Amendment, provides that
excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments
inflicted. Justice Kennedy acknowledged, The standard of extreme cruelty is not merely descriptive, but
necessarily embodies a moral judgment. The standard itself remains the same, but its applicability must
change as the basic mores of society change. (Justice Kennedys majority opinion) Instead, punishment
is justified under one or more of three principle rationales: rehabilitation, deterrence, and retribution.
Based on both consensus and the majority Justices independent judgment, the holding is that the death
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penalty for one who raped but did not kill a child, and who did not intend to assist another in killing the
child, is unconstitutional under the Eighth and Fourteenth Amendments. In concurrence were fellow
Justices: Stevens, Souter, Ginsburg and Breyer in an activist Court. The majority opinion concluded that
imposing the death penalty on child rapists is not actually in the interest of the victim, in part because it
may be more painful for the child to testify knowing that the prosecution is seeking death for the accused.
(OrderintheCourt.org: Exposing Activist Judges, Restoring Rule of Law)
Justice Samuel Alito, joined by Chief Justice Roberts and Justices Thomas and Scalia, dissented. In
his view, no national consensus existed prohibiting the death penalty in this case, and he vehemently
opposed the majority's application of a "blanket rule" barring the death penalty in child rape cases
regardless of the facts of the case, including the age of the child, the sadistic nature of the crime, and the
number of times the child has been raped. Additionally, the minority opinion rationed that execution of
rapists may remove a strong incentive for the rapist not to kill the victim. Justice Alito proclaims that
factors such as age, how many times the child is raped, the number of children the perpetrator rapes, how
sadistic the crime, how much physical and psychological trauma is inflicted, and how heinous the
perpetrators prior criminal record may be. In summary, Judge Alito states that the court holds that the
Eighth Amendment categorically rules out death penalty in even the most extreme cases of child rape,
despite the Coker case or any prior precedent failing to command this result, there are no reliable
objective indicia of a national consensus in support of the majority decision, and the obvious arm
inflicted upon the child, their families, and society in general. (Justice Alitos minority opinion)
While I agree that the world is a vastly and constantly modifying sphere and laws need to be
properly amended to fit into correct context in present form, child rape will and always will be a heinous
crime, just short of if not equivalent to first- degree murder. A child rapist does not deserve to live
knowing that they have severely and forever have changed lives of many. Much more of tax payers
dollars are spent on sentencing a death penalty as opposed to life in prison, but if I had the power to
change the complex system, I would remove the endless appeals that keep the money flowing, and restrict
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the appeals to one or two then the defendant would be a dead man walking. As harsh and extreme as it
sounds, I do believe it is ridiculous that the factors Justice Alito stated in his minority opinion has no
effect on the verdict and punishment by the death penalty. While it is difficult to set a standard and
threshold to a crime of child rape, deeming capital punishment is unconstitutional by the Eighth and
Fourteenth Amendments is beyond belief.
Kennedy v. Louisiana was a landmark decision, which held that the Eighth Amendments Cruel and
Unusual Punishment Clause prohibited states to punish child rape with the death penalty. The Supreme
Court reversed the ruling of the Louisiana Supreme Court, after finding the verdict unconstitutional. In
general, states could not impose capital punishment against one who has committed a crime that did not
result in the victims death, which is now limited to crimes against the state, such as treason and
espionage.
Works Cited
CASE I:
"Boumediene v. Bush | The Oyez Project at IIT Chicago-Kent College of Law." The Oyez Project at IIT
Chicago-Kent College of Law | U.S. Supreme Court Oral Argument Recordings, Case Abstracts
and More. Web. 23 July 2011. <http://www.oyez.org/cases/2000-2009/2007/2007_06_1195>.
"Boumediene v. Bush (06-1195); Al Odah v. United States (06-1196) | LII / Legal Information Institute."
LII | LII / Legal Information Institute. Web. 23 July 2011.
<http://topics.law.cornell.edu/supct/cert/06-1195>.
"Congressional Research Service Reports: Boumediene v. Bush: - General National Security."
Federation of American Scientists. Web. 23 July 2011. <http://www.fas.org/sgp/crs/natsec/>.
Documentaries, Tv. "Boumediene v. Bush (2008) JONATHAN TURLEY." JONATHAN TURLEY.
Web. 23 July 2011. <http://jonathanturley.org/2011/04/03/boumediene-v-bush-2008/>.
"Guantanamo: Boumediene v. Bush." WilmerHale. Web. 23 July 2011.
<http://www.wilmerhale.com/boumediene/>.
"Legal Analysis: Boumediene v. Bush/Al Odah v. United States." Center for Constitutional Rights. Web.
23 July 2011. <http://ccrjustice.org/learn-more/faqs/legal-analysis:-boumediene-v.-bush/al-odahv.-united-states>.
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CASE II:
Alito, Justice. "KENNEDY v. LOUISIANA." LII | Legal Information Institute at Cornell Law School. 16
Apr. 2008. Web. 24 July 2011. <http://www.law.cornell.edu/supct/html/07-343.ZD.html>.
"Kennedy v. Louisiana | The Oyez Project at IIT Chicago-Kent College of Law." The Oyez Project at IIT
Chicago-Kent College of Law | U.S. Supreme Court Oral Argument Recordings, Case Abstracts
and More. Web. 24 July 2011. <http://www.oyez.org/cases/2000-2009/2007/2007_07_343>.
"KENNEDY V. LOUISIANA, No. 07-343." Death Penalty Information Center. Web. 24 July 2011.
<http://www.deathpenaltyinfo.org/kennedy-v-louisiana-no-07-343>.
"Kennedy v. Louisiana, No. 07-343." Duke Law. Duke University. Web.
<http://www.law.duke.edu/publiclaw/supremecourtonline/certgrants/2007/kenvlou>.
OrderintheCourt.org: Exposing Activist Judges, Restoring Rule of Law. Web. 24 July 2011.
<http://orderinthecourt.org/>.