Convictions : pornography

The Kozinski Circus

Emily Bazelon — Wed, 11 Jun 2008 19:42:00 GMT

The problem with being a judge who loves to shock is that you're a flashy barracuda in a school of plain tuna, and you risk careening off into the high seas that are the province of public officials who are just too out there for their own good. Such is my thought after reading that Judge Alex Kozinksi posted porn on a web site he thought was private but wasn't. The material included "a photo of naked women on all fours painted to look like cows and a video of a half-dressed man cavorting with a sexually aroused farm animal," we learn from the los Angeles Times. We can't judge for ourselves anymore, because the site has been wiped clean, but if Judge Kozinski says that he found the porn funny, I bet he did—and it was probably offensive, too. Herein lies the Kozinski challenge. He is a transgessor, a flouter of boundaries, a man of many appetites. When he wrote a weeklong diary for Slate in 1996, he told us all about going to a lingerie and pajama party. ("The Location: Gatsby's Rendezvous by the Sea, 'the house that all of Malibu deems the scandalous haven of sleepless nights.' ") When I profiled him in 2004, the art for the piece depicted him as a circus master—and he liked it enough to ask for a copy. Plenty of other examples could be inserted here, and Phil has plenty of company in appreciating Judge K's quirks. Lots of reporters and court watchers have urged him onward with our appreciation. And now that we know that among the many things he appreciates are women painted to look like cows, how can we go all schoolmarmish? I know, I know, judges are supposed to be beyond reproach, and this is the opposite of that. And yes, being outed for semi-public porn-sharing while trying an obscenity case is pretty rich. It's the sort of plot twist Judge Kozinski would write into a screen play. Maybe that's the answer: Toss the bench and move to Hollywood.

No Time for Revival

Diane Marie Amann — Wed, 16 Apr 2008 10:10:00 GMT

Does the cruel-and-unusual punishments clause of the Eighth Amendment to the U.S. Constitution forbid execution for crimes that do not result in the death of the victim?

That's a wide-angle framing of the question on which the Supreme Court's set to hear oral argument this morning in the case of Kennedy v. Louisiana.

The narrower question is whether execution for rape of a child is constitutional. The state's brief stresses the age of the victim. No surprise there. For on matters such as possession of pornography, the court's allowed criminal punishment for conduct that the Constitution would protect if only consenting adults were involved. Such a narrow emphasis, however, obscures the question of proportionality that underpins any system of criminal justice.

Is a sentence of death grossly disproportionate and excessive punishment for the crime of rape, and therefore forbidden by the Eighth Amendment as cruel and unusual punishment?

Yes.

Or so said a majority of the court, in almost the exact same words, when it invalidated a death-penalty-for-rape in Coker v. Georgia (1977). But that was then, this is now. Justice John Paul Stevens is the only member of that majority still on the court, and in the interim three decades, concerns about crime have pushed to the fore.

Concerns about crime have not, however, fully displaced the concerns that animated the court in Coker. The concern that capital punishment for nonlethal crime evades proportionality was shared with jurists in other common law countries, briefing indicates. And there was another concern, too. Before Coker capital rape cases were brought overwhelmingly against African-American defendants, as Stuart Banner demonstrated in his The Death Penalty. Outlawing such cases thus eliminated a prime source of racially disparate sentencing. One sees no reason now for revival.

(Cross-posted on IntLawGrrls blog)