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Supreme Court Update I - Kennedy v. Louisiana

It's somewhat understandable that 4th Amendment jurisprudence would be, in the words of the late Chief Justice Rehnquist, "something other than a seamless web."  A simple glance at the Amendment reveals a multitude of terms which might cause mischief:  what is "unreasonable"?  What does "probable cause" mean?  How particular does a description in a warrant have to be?  What constitutes a "search"?  A "seizure"?

By comparison, the 8th Amendment seems a marvel of simplicity:  all it does is prohibit excessive bail and the infliction of "cruel and unusual punishments."  Any thoughts that the latter four words could easily produce a consensus as to their meaning should have been dissipated by the Court's decision in April in Baze v. Rees, where the Court was called upon to consider the constitutionality of the three-drug cocktail used for lethal injections in death penalty cases.  The result was seven separate opinions, none of which garnered the support of more than three justices.

The problem goes back well before that.  The Court's views on the application of the 8th Amendment to non-capital punishments has always been a mess; one can examine the decisions on excessive sentences, like those on California's three-strikes law, and experience great difficulty discerning any guiding principles from which future cases might be resolved.  Thus, it wasn't much of a surprise when the Court last term declined certiorari last term in a case involving a 200-year sentence for a first offender convicted of possessing child pornography, a crime which would have netted him a five-year sentence under the Federal guidelines; no need, or desire, to wade into that thicket again.

The Court's 8th Amendment approach to capital sentencing has fared slightly better, at least in terms of coherent results.  The Court has clearly adopted the "evolving standards of decency" test in determining whether the imposition of the death penalty on some particular offender (juveniles, the mentally retarded) or some particular offense (rape) is appropriate.  Yesterday, in Kennedy v. Louisiana the Court by a 5-4 vote decided that the crime of child rape fell short of that line.

In fact, perhaps the major accomplishment of Kennedy is to draw that line very brightly: 

our holding is that a death sentence for one who raped but did not kill a child, and who did not intend to assist another in killing the child, is unconstitutional under the Eighth and Fourteenth Amendments.

Given the brutal nature of child rape -- and the facts in this case were simply horrific -- if the Court isn't willing to impose the death penalty for this crime, it's difficult to imagine it imposing that penalty for any crime that doesn't involve the death of a victim.

Kennedy's definitive result certainly does not render it immune from criticism.  Part IV-B of Justice Kennedy's opinion (joined in by Stephens, Breyer, Ginsburg, and Souter) is spent advancing reasons why imposing the death penalty for child rape isn't a good idea, at one point arguing that "it is not at all evident that the child rape victim's hurt is lessened if the law permits the death of the perpetrator": 

Society’s desire to inflict the death penalty for child rape by enlisting the child victim to assist it over the course of years in asking for capital punishment forces a moral choice on the child, who is not of mature age  to make that choice.

As Justice Alito cogently argues in his dissent, that's a policy choice for the legislature, not the Court, to make.

One of the other problems of Kennedy is that it doesn't do much to clarify some of the questions left over from previous forays into the interplay between capital punishment and the 8th Amendment. When it struck down the down the imposition of the death penalty on the mentally retarded in Atkins v. Virginia, and on juveniles in Roper v. Simmons, the Court had looked to a number of sources to determine whether the "evolving standards of decency" showed a rejection of capital punishment as a penalty in those cases.  The list of indicators was fairly broad -- the acts of state legislatures, public opinion, even foreign law -- but there was so little clarity in exposition of how those factors could be quantified as objective indicators that the net result was simply to create a Rorschach test for the justices, in which they could sift the evidence and discern whatever they needed to reach the result they wanted.  In both Atkins and Roper, for example, the majority found a consensus favoring rejection by virtue of the fact that 30 states barred the death penalty for the mentally retarded and for juveniles.  Actually, that wasn't quite accurate:  12 states didn't have the death penalty at all, which meant that a majority of the states which did have the penalty allowed it for either the mentally retarded or juveniles.  In the case of the mentally retarded, the majority could at least argue that a consensus was emerging:  19 states had outlawed that penalty for the mentally retarded since the Court had last considered the issue 12 years earlier.  There was no such emerging consensus with regard to the penalty for juveniles; only a couple of states had switched positions.

And Kennedy poses an interesting twist on that issue:  in recent years, a number of states have moved to adopt the death penalty for child rape.  What happens if there's an "emerging consensus" the other way?  As Benjamin Wittes put it in a recent article in New Republic (subscription required):

Is the Eighth Amendment a one-way ratchet--a device that can remove punishments from the policy table but which never puts them back on it--or is there some mechanism by which the court can acknowledge that societal mores sometimes evolve in a more punitive direction?

These questions are interesting, but given the definitive conclusion in Kennedy, seem to be pretty much academic at this point.

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