The Supreme Court today, in Kennedy v. Louisiana, found that the Eighth Amendment bars the death sentence of a man who brutally raped his 8-year-old stepdaughter, causing traumatic physical injury (decency doesn’t permit quoting here the Court’s discussion of the facts on p. 2 of its opinion), to say nothing of the emotional trauma. The decision was 5-4, with Justice Kennedy writing the opinion joined by the Court’s liberal bloc. The decision is significant in three major main ways:
1. It essentially bars the death penalty in all cases that do not result in the death of the victim, with the exception of “offenses against the State.”
2. It explicitly confirms that the Court’s reliance on an ‘evolving national consensus’ against the death penalty in specified circumstances is truly a one-way street; the Court frankly admits that unless there is strong evidence of a national consensus favoring the death penalty for a particular crime at a particular time, the Court will permanently bar every state from using the democratic process to impose such a penalty at any time in the future.
3. It rejects the notion that state legislatures are competent to come up with any sort of safeguards, a conclusion much in line with the Court’s recent view that Congress is incapable of determining procedures for the handling of alleged enemy combatants. The assertion of judicial supremacy inherent in this conclusion is staggering.
1. No Death Penalty For Non-Homicide Crimes
Justice Kennedy’s opinion began with a decidedly ahistorical reading of the Eighth Amendment, a document written at a time when basically all felonies were punishable by death:
[P]unishment is justified under one or more of three principal rationales: rehabilitation, deterrence, and retribution….It is the last of these, retribution, that most often can contradict the law’s own ends. This is of particular concern when the Court interprets the meaning of the Eighth Amendment in capital cases. When the law punishes by death, it risks its own sudden descent into brutality, transgressing the constitutional commitment to decency and restraint.
Applying this view of the death penalty’s permissible scope, the Court concluded that the rape of a child just isn’t bad enough to justify an execution:
It must be acknowledged that there are moral grounds to question a rule barring capital punishment for a crime against an individual that did not result in death. These facts illustrate the point. Here the victim’s fright, the sense of betrayal, and the nature of her injuries caused more prolonged physical and mental suffering than, say, a sudden killing by an unseen assassin. The attack was not just on her but on her childhood. For this reason, we should be most reluctant to rely upon the language of the plurality in Coker, which posited that, for the victim of rape, “life may not be nearly so happy as it was” but it is not beyond repair. … Rape has a permanent psychological, emotional, and sometimes physical impact on the child. …We cannot dismiss the years of long anguish that must be endured by the victim of child rape. It does not follow, though, that capital punishment is a proportionate penalty for the crime. The constitutional prohibition against excessive or cruel and unusual punishments mandates that the State’s power to punish “be exercised within the limits of civilized standards.”
Note that the Court offers no further explanation of why the death penalty is disproportionate to such a horrible crime. The Court’s expressed concern for the awfulness of child rape is just so much window-dressing, to be given no real analytical weight against the ipse dixit of the present state of five ‘consciences’:
Consistent with evolving standards of decency and the teachings of our precedents we conclude that, in determining whether the death penalty is excessive, there is a distinction between intentional first-degree murder on the one hand and nonhomicide crimes against individual persons, even including child rape, on the other. The latter crimes may be devastating in their harm, as here, but “in terms of moral depravity and of the injury to the person and to the public,” …they cannot be compared to murder in their “severity and irrevocability.”
Evolving standards of decency that mark the progress of a maturing society counsel us to be most hesitant before interpreting the Eighth Amendment to allow the extension of the death penalty, a hesitation that has special force where no life was taken in the commission of the crime. It is an established principle that decency, in its essence, presumes respect for the individual and thus moderation or restraint in the application of capital punishment.
The Court left for another day, however, the death penalty as applied to crimes that extend beyond individual victims:
We do not address, for example, crimes defining and punishing treason, espionage, terrorism, and drug kingpin activity, which are offenses against the State.
Now, personally, I have a good deal of sympathy with the idea that, for a variety of reasons, the death penalty is best employed against these sorts of crimes. But it’s revealingly statist as well as inhumanly insensitive and legally nonsensical to impose a rule of Constitutional dimension that says that dealing drugs is worse than raping a child.
2. Democracy Stops Here
The real challenge in Kennedy, as I have noted for some time, is that unlike prior decisions that restricted the use of the death penalty against the mentally retarded or underage offenders based on an alleged ‘evolving national consensus,’ – a position that, in flagrant violation of Article V’s express provision for how a specific number of state legislatures may change the meaning of the Constitution through the amendment process – in this case, the trend, however modest, has been for states to add the death penalty for crimes like child rape.
The Court examined the evidence of such movement and found it – like so many things in the democratic process – fitful and inconclusive:
The evidence of a national consensus with respect to the death penalty for child rapists, as with respect to juveniles, mentally retarded offenders, and vicarious felony murderers, shows divided opinion but, on balance, an opinion against it. Thirty-seven jurisdictions – 36 States plus the Federal Government – have the death penalty. As mentioned above, only six of those jurisdictions authorize the death penalty for rape of a child. Though our review of national consensus is not confined to tallying the number of States with applicable death penalty legislation, it is of significance that, in 45 jurisdictions, petitioner could not be executed for child rape of any kind. That number surpasses the 30 States in Atkins and Roper and the 42 States in Enmund that prohibited the death penalty under the circumstances those cases considered.
In general, this sort of nose-counting is precisely the stuff of the democratic process and no business of the judiciary. But the Court determines that there are simply not enough states to stand in its way:
Respondent insists that the six States where child rape is a capital offense, along with the States that have proposed but not yet enacted applicable death penalty legislation, reflect a consistent direction of change in support of the death penalty for child rape. Consistent change might counterbalance an otherwise weak demonstration of consensus. …. But whatever the significance of consistent change where it is cited to show emerging support for expanding the scope of the death penalty, no showing of consistent change has been made in this case.
How does the Court respond to the lack of a consensus? By finding that a consensus to the contrary must exist!
After reviewing the authorities informed by contemporary norms, including the history of the death penalty for this and other nonhomicide crimes, current state statutes and new enactments, and the number of executions since 1964, we conclude there is a national consensus against capital punishment for the crime of child rape.
Well, as long as five Justices count the votes, what are you going to do about it? The majority expressly rejects the idea that the messy business of finding consensuses should be left to the representatives of the people whose “consensus” is being announced, and instead announces a default presumption against the death penalty wherever a clear national consensus does not exist in its favor, regardless of the consensus within individual states:
[The difficulty of determining the direction of the states] has led some Members of the Court to say we should cease efforts to resolve the tension and simply allow legislatures, prosecutors, courts, and juries greater latitude. …Our response to this case law, which is still in search of a unifying principle, has been to insist upon confining the instances in which capital punishment may be imposed.
Note that the lack of “a unifying principle” does not restrain the Court from reaching a conclusion that is both categorical and intended to be a permanent restraint on further evolution of the People’s consensus:
Our determination that there is a consensus against the death penalty for child rape raises the question whether the Court’s own institutional position and its holding will have the effect of blocking further or later consensus in favor of the penalty from developing. The Court, it will be argued, by the act of addressing the constitutionality of the death penalty, intrudes upon the consensus-making process. By imposing a negative restraint, the argument runs, the Court makes it more difficult for consensus to change or emerge. The Court, according to the criticism, itself becomes enmeshed in the process, part judge and part the maker of that which it judges. 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.”… 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.
The reference to “full progress and mature judgment” is a particularly ominous one for fans of popular self-government and limitation of the Court’s powers to those enumerated by prior agreement of We the People.
Ironically, the Court also bats away the suggestion that some states may have feared to enact the death penalty due to suggestions in prior decisions that it could be struck down:
[R]espondent contends, it is possible that state legislatures have understood Coker to state a broad rule that covers the situation of the minor victim as well. We see little evidence of this. Respondent cites no reliable data to indicate that state legislatures have read Coker to bar capital punishment for child rape and, for this reason, have been deterred from passing applicable death penalty legislation. In the absence of evidence from those States where legislation has been proposed but not enacted we refuse to speculate about the motivations and concerns of particular state legislators.
Note that the Court is comfortable finding a consensus of the people, but not discerning the intentions of legislatures.
The position of the state courts, furthermore, to which state legislators look for guidance on these matters, indicates that Coker has not blocked the emergence of legislative consensus.
We conclude on the basis of this review that there is no clear indication that state legislatures have misinterpreted Coker to hold that the death penalty for child rape is unconstitutional. The small number of States that have enacted this penalty, then, is relevant to determining whether there is a consensus against capital punishment for this crime.
3. Never Trust The Legislature
The final piece of the Court’s holding that I’ll deal with only briefly here is its concern that the death penalty could not be applied with sufficient safeguards to child rape, given the relative (national) rarity of its application:
Evolving standards of decency are difficult to reconcile with a regime that seeks to expand the death penalty to an area where standards to confine its use are indefinite and obscure.
Once again, the Court simply does not trust legislatures, unlike courts, to deliberate and develop rules and standards. But those state legislatures simply do not have five votes.