Kennedy II--Overturning LA's death penalty for rape of a child

Two Kennedy's prevailed in this case. The obvious one was the defendant, who by a 5-4 margin of the Supreme Court, had his death sentence for child rape overturned by the Court. The second Kennedy was Justice Anthony Kennedy, the one hailed as the successor to Justice Sandra Day O'Connor as the "swing vote" in controversial cases before the Court. Justice Kennedy clearly relishes this role, and in this instance his opinion striking down a LA law permitting the death penalty for rape of a child (on Eighth Amendment grounds), when the child did not die from the rape, received the four votes of the predictable liberals. The Four Conservatives dissented, in language that was heavily spiced with ineffectual rhetorical (just read the first paragraph of Justice Alito's dissent).

Of the several interesting things in this case, two are the Court's emphasis on the "evolving standards of decency" that characterize a maturing society and the rejection of the dissenters' argument that a national "trend" was developing on the issue. The dissenters argued that since five states had passed legislation allowing the death penalty for child rape since 1995 that a clear national trend was developing; the majority argued that five states is a lot fewer than 15 or 20 or a number that was sufficient to constitute a national trend in recent death penalty cases. Whenever a majority opinion begins by citing the quoted phrase--the "evolving standards of decency," you know that a liberally-inclined decision is in the offing. So it was here.

Death penalty opponents are probably ecstatic because of this decision, for it, along with decisions by the Court in previous years to disallow the death penalty for the mentally retarded or for people who were less than 18 years-of-age when committing their capital crime, seems to suggest a "softening" of support for the penalty. Yet, the Court is far from supporting abolition; what has happened is that a few cases "on the edges" have all been decided in the favor of the abolitionists. A heady time indeed.

The remainder of this essay will review some of the arguments made by Justice Kennedy in the majority opinion.

A Few Facts of the Case

From the Syllabus of the decision, we have the following:

"Louisiana charged petitioner with the aggravated rape of his then-8-year-old stepdaughter. He was convicted and sentenced to death under a state statute authorizing capital punishment for the rape of a child under 12. The State Supreme Court affirmed, rejecting petitioner's reliance on Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982, which barred the use of the death penalty as punishment for the rape of an adult woman but left open the question which, if any, other nonhomicide crimes can be punished by death consistent with the Eighth Amendment. Reasoning that children are a class in need of special protection, the state court held child rape to be unique in terms of the harm it inflicts upon the victim and society and concluded that, short of first-degree murder, there is no crime more deserving of death. The court acknowledged that petitioner would be the first person executed since the state law was amended to authorize the death penalty for child rape in 1995, and that Louisiana is in the minority of jurisdictions authorizing death for that crime. However, emphasizing that four more States had capitalized child rape since 1995 and at least eight others had authorized death for other nonhomicide crimes, as well as that, under Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1, and Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335, it is the direction of change rather than the numerical count that is significant, the court held petitioner's death sentence to be constitutional."

Note how the Court began its opinion. By so framing the issue, we know that the Louisiana law will be invalidated:

"The Amendment's Cruel and Unusual Punishment Clause “draw[s] its meaning from the evolving standards of decency that mark the progress of a maturing society.” Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 2 L.Ed.2d 630. The standard for extreme cruelty “itself remains the same, but its applicability must change as the basic mores of society change.” Furman v. Georgia, 408 U.S. 238, 382, 92 S.Ct. 2726, 33 L.Ed.2d 346. Under the precept of justice that punishment is to be graduated and proportioned to the crime, informed by evolving standards, capital punishment must “be limited to those offenders who commit ‘a narrow category of the most serious crimes' and whose extreme culpability makes them ‘the most deserving of execution.’ ” Roper, supra, at 568. Applying this principle, the Court held in Roper and Atkins that the execution of juveniles and mentally retarded persons violates the Eighth Amendment because the offender has a diminished personal responsibility for the crime. The Court also has found the death penalty disproportionate to the crime itself where the crime did not result, or was not intended to result, in the victim's death. See, e.g., Coker, supra; Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 . In making its determination, the Court is guided by “objective indicia of society's standards, as expressed in legislative enactments and state practice with respect to executions.” Roper, supra, at 563. Consensus is not dispositive, however. Whether the death penalty is disproportionate to the crime also depends on the standards elaborated by controlling precedents and on the Court's own understanding and interpretation of the Eighth Amendment's text, history, meaning, and purpose."

That paragraph lays out the Court's understanding of the issue. He then went on to argue that the only national consensus on this issue was one against capital punishment for the crime of child rape.

"The Court follows the approach of cases in which objective indicia of consensus demonstrated an opinion against the death penalty for juveniles, see Roper, supra, mentally retarded offenders, see Atkins, supra, and vicarious felony murderers, see Enmund, supra. Thirty-seven jurisdictions-36 States plus the Federal Government-currently impose capital punishment, but only six States authorize it for child rape. In 45 jurisdictions, by contrast, petitioner could not be executed for child rape of any kind. That number surpasses the 30 States in Atkins and Roper and the 42 in Enmund that prohibited the death penalty under the circumstances those cases considered."

Crucial to deal with, however, was the Coker case:

"Respondent's argument that Coker 's general discussion contrasting murder and rape, 433 U.S., at 598, has been interpreted too expansively, leading some States to conclude that Coker applies to child rape when in fact it does not, is unsound. Coker 's holding was narrower than some of its language read in isolation indicates. The Coker plurality framed the question as whether, “with respect to rape of an adult woman,” the death penalty is disproportionate punishment, id., at 592, and it repeated the phrase “adult woman” or “adult female” eight times in discussing the crime or the victim. The distinction between adult and child rape was not merely rhetorical; it was central to Coker 's reasoning, including its analysis of legislative consensus. See, e.g., id., at 595-596. There is little evidence to support respondent's contention that state legislatures have understood Coker to state a broad rule that covers minor victims, and state courts have uniformly concluded that Coker did not address that crime. Accordingly, the small number of States that have enacted the death penalty for child rape is relevant to determining whether there is a consensus against capital punishment for the rape of a child."

Justice Kenedy and the majority seemed to think that a total of five states with the death penalty for child rape didn't mean that a consensus was developing:

"A consistent direction of change in support of the death penalty for child rape might counterbalance an otherwise weak demonstration of consensus, see, e.g., Atkins, 536 U.S., at 315, but no showing of consistent change has been made here. That five States may have had pending legislation authorizing death for child rape is not dispositive because it is not this Court's practice, nor is it sound, to find contemporary norms based on legislation proposed but not yet enacted. Indeed, since the parties submitted their briefs, the legislation in at least two of the five States has failed. Further, evidence that, in the last 13 years, six new death penalty statutes have been enacted, three in the last two years, is not as significant as the data in Atkins, where 18 States between 1986 and 2001 had enacted legislation prohibiting the execution of mentally retarded persons. See id., at 314-315. Respondent argues that this case is like Roper because, there, only five States had shifted their positions between 1989 and 2005, one less State than here. See 543 U.S., at 565. But the Roper Court emphasized that the slow pace of abolition was counterbalanced by the total number of States that had recognized the impropriety of executing juvenile offenders. See id., at 566-567. Here, the fact that only six States have made child rape a capital offense is not an indication of a trend or change in direction comparable to the one in Roper. The evidence bears a closer resemblance to that in Enmund, where the Court found a national consensus against death for vicarious felony murder despite eight jurisdictions having authorized it. See 458 U.S., at 789, 792."

The dissent took issue with the majority's characterization of a national trend, but that is why we have majorities and dissents. The only thing that is just too bad here is that highly charged issues are "five-four" votes even before counsel opens his mouth before the Court. The only question is which way Kennedy will go. Now we know.

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