Though it’s been a couple of weeks now, I’d like to revisit the Court’s decision in Kennedy v. Louisiana ruling the execution of child-rapists unconstitutional. I expressed my overall view of the majority’s ruling in the title of this post, but allow me to elaborate a bit more on why the majority’s opinion is so (potentially) important and so definitely awful.
The appellant raped his eight-year old step-daughter and was sentenced to death under a Louisiana statute, one of six in the nation allowing juries to return a verdict of death in child rape cases. Justice Kennedy, joined by Justices Breyer, Ginsburg, Souter, and Stevens, concluded that imposing the death penalty in child rape cases where the victim doesn’t die (ie., where there’s no capital murder chargé to go with the rape charge) is “grossly disproportionate” and therefore constitutes Cruel and Unusual Punishment under the Eighth Amendment. The majority reached that conclusion by (1) determining that under current “standards of decency” a national consensus exists against executing child-rapists and (2) deciding that, in their own “independent judgment,” executing child rapists is morally unjustified and is a bad policy course. Justice Alito, joined by Chief Justice Roberts and Justices Scalia and Thomas, wrote a rhetorically restrained but substantively vigorous dissent.
In my view, there are three major doctrinal implications for the law on capital punishment to come from the Court’s opinion,. Even more importantly, though, the Court’s reasoning on those points gives us one broadly applicable lesson that, if followed faithfully in future cases, could have a huge impact on availability of the death penalty in America.
But let’s start with the doctrinal points:
1. The Court further confirmed that the evidentiary burden needed to show a “national consensus” against imposing the death penalty for a certain crime is quite, quite low.
As Justice Kennedy directly states in his opinion, the Court has, since Trop v. Dulles in 1958, forsworn the notion that whether the death penalty is grossly disproportionate for a certain crime must be assessed by views of the Eighth Amendment at the time it was enacted. Instead, the Court has chosen to look to “the evolving standards of decency that mark the progress of a maturing society” and the “independent judgment" of the Justices themselves in determining whether a punishment is grossly disproportionate. On the evolving standards of decency point, the Court has consistently stated that it looks for a "national consensus" that a criminal act doesn't merit the death penalty before striking down at statute, particularly looking to the "objective evidence" of how legislators and juries behave.
But of course, as the Court has repeatedly shown the amount of objective evidence needed to demonstrate a national moral consensus against imposing the death penalty for a certain crime is not what one would initially think upon reading the word "consensus." To stick with two recent and prominent examples, in Atkins v. Virginia (2002) and Roper v. Simmons (2005) five Justices concluded that a national consensus existed against executing all offenders who were, respectively, under 18 or slightly mentally retarded at the time they committed otherwise capital murders. In both cases, 20 states --a majority of the states that had the death penalty at the time-- allowed the execution of such defendants.
In light of Atkins and Roper it was already clear that the level of proof needed to establish a national "consensus" is remarkably low, but Kennedy lower the bar even further, albeit in a somewhat different way. As noted above, at the time of the decision only six states had laws allowing the execution of child- rapists on the books. Why so few? Because in Coker v. Georgia, the 1977 case holding that a death sentence is grossly disproportionate for the rape of an adult woman (no matter the aggravating factors present), a plurality opined that rape does not morally merit the punishment of death because it does not result in the taking of a life. The conclusion in Coker that personal crimes that do not result in death cannot be punished by death was technically dicta; the facts of the case were limited to the rape of an adult woman. But, until recently, state legislators and courts took that dicta to heart, predicting (correctly, as we now know) that the Supreme Court would use similar reasoning to strike down child-rape laws.
In Kennedy, the state of Louisiana and the dissenting Justices made the obvious argument that the relatively small number of states to allow the execution of child-rapists could not be taken as proof of a moral consensus against the practice because of the impact of the Coker dicta. But the majority, wielding the shield of “It was only dicta!,” deflected that argument away. Thus, the Court declared the execution of child-rapists unconstitutional based partly on the small number of states allowing such executions where non-enacting states may have been very reasonably reluctant to pass such laws because the Court had previously opined that similar laws were unconstitutional.
As the result, the already liberal standard of proof needed to show a “national consensus” has been loosened yet further. Indeed, the now-farcical nature of the Court's consensus standard was pricelessly captured in the majority's own opinion:
The evidence of a national consensus with respect to the death penalty for child rapists ... shows divided opinion but, on balance, an opinion against it.
In contrast, in his dissent Justice Alito cut through the farce and spoke to actual current moral standards:
I have little doubt that, in the eyes of ordinary Americans, the very worst child rapists —predators who seek out and inflict serious physical and emotional injury on defenseless young children— are the epitome of moral depravity.
2. Despite all logic, “standards of decency” can only "evolve" toward narrower use of the death penalty.
When the Court first announced that it was taking Kennedy, there was a fair bit of excitement in the ranks of observers because the case was a vehicle for addressing a unclear question regarding how the legally cognizable “standards of decency” on the death penalty could evolve. In the 10-15 years proceeding Kennedy, states and the federal government had been expanding the number of crimes which could, according to the letter of the law at least, merit the death penalty (no one in the U.S. has actually been executed for a crime other than murder since the 1960’s). Indeed, the adoption by six states of laws allowing the death penalty for child rape was a part of this trend of expanding the death penalty to non-murders. Not surprisingly, many began to ask the jurisprudential question of whether societal standards of decency could evolve toward acceptance of the death penalty for a greater range of crimes. Put another way, the question that observers really expected Kennedy to speak to was whether standards of decency can only “evolve” toward less use of the death penalty –with that doctrine thus being a “one-way ratchet” – or whether societal views can indeed evolve toward expansion of the death penalty’s use.
Now, from a strictly analytical standpoint, the answer to that question is fairly obvious: as Justice Scalia and many others have pointed out there’s no reason whatsoever to think that societal standards of decency can only evolve upward (even assuming that restricting application of the death penalty is “upward” evolution). But, of course, the judgment of the Court is only bounded by what conclusions can gain five votes. Justice Kennedy answered the ratchet question, in his distinctively conclusory and broadly sweeping Justice Kennedy style, in responding to Justice Alito’s dissenting arguments on the issue:
These concerns overlook the meaning and full substance of the established proposition that the Eighth Amendment is defined by “the evolving standards of decency that mark the progress of a maturing society.” Trop, 356 U. S., at 101 (plurality opinion). Confirmed by repeated, consistent rulings of this Court, this principle requires that use of the death penalty be restrained. The rule of evolving standards
of decency with specific marks on the way to full progress and mature judgment means that resort to the penalty must be reserved for the worst of crimes and limited in its instances of application. In most cases justice is not better served by terminating the life of the perpetrator rather than confining him and preserving the possibility that he and the system will find ways to allow him to understand the enormity of his offense. Difficulties in administering the penalty to ensure against its arbitrary and capricious application require adherence to a rule reserving its use, at this stage of evolving standards and in cases of crimes against individuals, for crimes that take the life of the victim.
In other words, it doesn't matter whether societal standards can or do evolve toward using the death penalty more broadly; only changes in societal views toward more restricted use can be recognized because the scope of capital crimes should never be extended.
And thus the farcical "evolving standards of decency" standard turns, at the last, into pure, intellectually insulting, utterly dishonest nonsense.
Okay, so I see that I'm over the 1500 word mark, which means that it's more than past time to break this piece into two parts in the interest of maintaining some bit of readability. Stay tuned for (a hopefully shorter) second part where I'll discuss the Court's "independent judgment" and the broader overarching lesson from Kennedy v. Louisiana.
Corrections: Fixed a couple of glaring grammatical errors.