SCOTUSBlog notes that the State of Louisiana – in opposing a certiorari petition – is pointing to a trend of adding child rape to the list of capital crimes as a basis for finding that it’s not cruel and unusual punishment under the Eighth Amendment to execute a man who raped his 8-year-old stepdaughter:
The state said that the Court, if it agrees to hear the case, should focus not only on how many states treat rape of a child as a capital crime, but also on a trend toward applying the death sentence to more crimes where the victim is not killed. Five states, like Louisiana, now have capital punishment for child rape, all enacted since 1997 with the most recent, in Texas, in 2007.
Moving beyond that specific crime, the state’s brief said, 15 out of the 38 states and the federal government – 41 percent of the jurisdictions, it notes — “authorize some form of non-homicide capital punishment.” That includes treason, espionage, aircraft piracy, aggravated kidnapping, and some drug trafficking crimes.
“The trend toward capitalization of non-homicide crimes, child rape in particular, is significant,” the state asserted. “Six states have now enacted the death penalty for child rape after this Court [in Coker v. Georgia, 1977] held that the death penalty for rape of an adult woman was unconstitutional.”
This argument puts the Court’s liberals and swing vote Justice Kennedy to the test to see if they actually mean what they say.
If you recall, the Court in cases such as Atkins v Virginia, involving the execution of the mentally retarded, and Roper v. Simmons, involving the execution of defendants who were under 18 at the time of the crime, has pointed to some variant of an “evolving national consensus” drawn from a trend in state statutes dealing with the death penalty as a basis for finding that the meaning of the Eighth Amendment has been changed sufficiently to extend the constitutional rule to force the dissenting states into line. In Roper, that “evolving consensus” consisted of four state legislatures and one state court changing positions between 1989 and 2005. As I have argued previously, because Article V of the Constitution provides a specific mechanism for the meaning of the document to be altered by action of three-fourths of the states voting in a specified way on a specific written amendment proposed either by two-thirds of the states or two-thirds of both Houses of Congress, this line of reasoning is hopelessly irreconcilable with the text of the Constitution.
But for now, we are stuck with the doctrine; the issue is its application. Is it possible for the “national consensus” to “evolve” in a direction that Justices who oppose the death penalty* don’t like or agree with? Or is this, like so many liberal Constitutional doctrines, a one-way ticket?
* – As I have explained before, I personally don’t support using the death penalty against ordinary individual crimes, even those as heinous as child rape, although I wouldn’t really have a problem applying that law if asked to as a prosecutor or a juror. But in any event, it’s nonsense to suggest that it’s unconstitutional.