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Another look at Kennedy?

In one of the last decisions of this past term, the Supreme Court put the kabosh to a state law allowing the death penalty for child rapists in Louisiana v. Kennedy (discussed here).  On Monday, Louisiana filed a petition with the Court for reconsideration of the case.  Normally, the outcome of this would be as difficult to predict as who'll be on the cover of O, the Oprah Magazine next month.  As even the petition acknowledges, the Court "almost never grants petitions for rehearing."

So why bother?

 As this post from SCOTUSblog explains, the Court's decision was based on its conclusion that the consensus of public opinion was that the death penalty should be reserved for cases in which there's an intentional taking of life, and part of that conclusion was premised on the fact that there was no Federal death penalty for child rape.  Ooops.  Days after the decision was released, a military law blog pointed out that in 2006, Congress had passed a law authorizing courts-martials to impose the death penalty for child rape.  This set the legal world all a-twitter, with some wags labeling the case one of ineffective assistance of prosecutors.

Even if the Court had known about this, there's little likelihood that the outcome would have been different.  But the Court's flub -- aided as it was by the lawyers for Louisiana and the ten states which filed amicus briefs supporting its position -- draws further unfortunate attention to what is probably the worst-received Supreme Court decision since Kelo v. City of New London three years ago, in which the Court essentially gave cities carte blanche to seize private property for developers.  What can you say when both presidential candidates diss the decision, and the public opposes it by a 55-38 margin? 

Ordinarily, this wouldn't be a big deal; Supreme Court decisions aren't decided on the basis of popularity.  But in this context it is, because it shoots large holes in the "consensus" theory that is the main rationale for the decision.  That isn't the only criticism of the decision, of course.  In Atkins and Roper, the decisions striking down the death penalty for the mentally retarded and for juveniles, respectively, the Court had relied to a certain extent on foreign law -- the fact that foreign jurisdictions didn't impose capital punishment on those groups.  No such reference to foreign law appears in Kennedy.  Why?  Because it wouldn't have supported the majority's outcome; as Prof. Berman at Sentencing Law & Policy points out

Few countries limit the application of the death penalty in the way that Kennedy now constitutionally commands.  According to Amnesty International , China applies the death penalty to 68 crimes, and Iran and Egypt recently executed persons for the crime of adultery.  India, Malaysia, Singapore are just a few of the other countries in which non-homicide crimes other than treason are death-eligible.

Indeed, the support for the decision seems mainly to be along the lines that whatever the merits (or lack of same) of the opinion's reasoning, it comes to the right result.  A couple of bloggers over at Balkinization make this argument, and it's not a bad one.  They note that there have been about 600,000 murders in this country in the past 30 years, for which some 1,100 people have been executed.  Winnowing out the fraction of killers supposedly deserving of the death penalty has been a difficult, costly, and time-consuming task, and one fraught with arbitrary results.  As the authors note, there are about 36,500 child rapes a year, compared to fewer than half that many homicides.  Determining which of those perpetrators merits a death penalty would present an enormous task, and thus, according to the authors, "the Court’s decision forestalls the costly and ultimately ineffectual legal haggling that would take place over an immense new body of death-eligible cases."

I think they're on the money with that observation.  One of the distinctions employed to "death-qualify" a homicide is the use of aggravating factors, like killing more than one person, or killing a policeman, etc.  Louisiana's law made no attempt to do that -- any child rape was eligible for imposition of the death penalty -- and it's difficult to see how distinctions might be drawn.  One might reserve the penalty only for the most brutal or horrific cases, but the Court's treatment of the "especially heinous" aggravating circumstance in murder cases holds out little hope that a similar factor in child rape cases would not be applied haphazardly and arbitrarily.

But maybe that wouldn't be such a bad thing.   Last week the Delano Hale's death penalty was affirmed by the Ohio Supreme Court; he'd lured a man to his hotel room, robbed him, and shot him four times in the head.  A few weeks before that, Jermaine McKinney's aggravated murder convictions were affirmed by the 11th District.  He'd robbed two women, raped one, killed them both, and then cut off their limbs and tried to burn them in a furnace to hide the evidence.  The jury gave him two sentences of life without parole.  There is no rational explanation for the different results, other than two different juries and two different sets of lawyers were involved.

Capital punishment in this country is a crumbling edifice.  We do not execute the worst of the worst, we execute the unluckiest of the unlucky.  Maybe throwing tens of thousands of more cases into the mix and forcing people to answer the question who will live and who will die will finally cause the whole damned thing to fall down.

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