Naked Emperor Rules: No Death for Child Rapists

The Supreme Court issued its decision in Kennedy v. Louisiana, one of the high-profile cases before the Court this term, concerning the constitutionality of the death penalty for rape of a child.

The Court divided 5-4, with swing-vote Justice Anthony Kennedy joining the Court's liberal block of Justices Ginsburg, Souter, Breyer, and Stevens in holding unconstitutional the death penalty for the crime of rape of a child, where the crime did not result, and was not intended to result, in death of the victim. The Court's majority held that the death penalty for violent criminals in such cases violates the Eighth Amendment's prohibition against cruel and unusual punishment.

The Court's conservative justices -- Chief Justice Roberts, and Justices Scalia, Thomas, and Alito -- dissented.

From Justice Kennedy's majority opinion:

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.” Trop, 356 U. S., at 101 (plurality opinion). 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. In most cases justice is not better served by terminating the life of the perpetrator rather than confining him and preserving the possibility that he and the system will find ways to allow him to understand the enormity of his offense. [emphasis added] Difficulties in administering the penalty to ensure against its arbitrary and capricious application require adherence to a rule reserving its use, at this stage of evolving standards and in cases of crimes against individuals, for crimes that take the life of the victim. Kennedy, J., Slip Op. at 36.

It seems to me to be that, at the end of the day, those in the majority simply substituted their own preferences for that of elected state legislators. Determining whether or not justice is "better served by terminating the life of the perpetrator rather than confining him and preserving the possibility that he and the system will find ways to allow him to understand the enormity of his offense[]" is quintessentially a function of elected legislatures, not the judiciary. Indeed, determining what is an appropriate and proportionate punishment for a crime is typically one of a legislature's specifically enumerated functions.

Justice Kennedy's majority opinion spends much time discussing the "national consensus" against the death penalty, and "evolving standards of decency". While this line of reasoning might be in keeping with the line of the Court's own death penalty precedents (see, e.g., Coker v. Georgia, Atkins v. Virginia, Roper v. Simmons), it illustrates the problems with a judicial philosophy that requires interpretation of constitutional provisions not according to their meaning at the time of adoption, but rather on an ongoing, and constantly changing, basis. In this judicial approach to constitutional interpretation, the risk of justices substituting their own policy preferences and "independent judgment" (to use Justice Kennedy's term) in place of the policy judgments of elected legislators, is great indeed.

Obviously, this is not to suggest that legislators have free reign to impose any sentence that they please, for any crime, without limits, but rather that the Eighth Amendment's prohibition on "cruel and unusual" punishment ought to be interpreted in light of that phrase's meaning at the time of adoption of that amendment, not in light of a continuously evolving (and only judicially discernible) meaning.

Justice Alito in his dissent, joined by Chief Justice Roberts, and Justices Scalia and Thomas, notes:

The Court today holds that the Eighth Amendment categorically prohibits the imposition of the death penalty for the crime of raping a child. This is so, according to the Court, no matter how young the child, no matter how many times the child is raped, no matter how many children the perpetrator rapes, no matter how sadistic the crime, no matter how much physical or psychological trauma is inflicted, and no matter how heinous the perpetrator’s prior criminal record may be. The Court provides two reasons for this sweeping conclusion: First, the Court claims to have identified “a national consensus” that the death penalty is never acceptable for the rape of a child; second, the Court concludes, based on its “independent judgment,” that imposing the death penalty for child rape is inconsistent with “ ‘the evolving standards of decency that mark the progress of a maturing society.’ ” Ante, at 8, 15, 16 (citation omitted). Because neither of these justifications is sound, I respectfully dissent.

I turn first to the Court’s claim that there is “a national consensus” that it is never acceptable to impose the death penalty for the rape of a child. The Eighth Amendment’s requirements, the Court writes, are “determined not by the standards that prevailed” when the Amendment was adopted but “by the norms that ‘currently prevail.’ ” Ante, at 8 (quoting Atkins v. Virginia, 536 U. S. 304, 311 (2002)). In assessing current norms, the Court relies primarily on the fact that only 6 of the 50 States now have statutes that permit the death penalty for this offense. But this statistic is a highly unreliable indicator of the views of state lawmakers and their constituents. As I will explain, dicta in this Court’s decision in Coker v. Georgia, 433 U. S. 584 (1977), has stunted legislative consideration of the question whether the death penalty for the targeted offense of raping a young child is consistent with prevailing standards of decency. The Coker dicta gave state legislators and others good reason to fear that any law permitting the imposition of the death penalty for this crime would meet precisely the fate that has now befallen the Louisiana statute that is currently before us, and this threat strongly discouraged state legislators — regardless of their own values and those of their constituents — from supporting the enactment of such legislation. As the Court correctly concludes, the holding in Coker was that the Eighth Amendment prohibits the death penalty for the rape of an “ ‘adult woman,’ ” and thus Coker does not control our decision here. See ante, at 17. But the reasoning of the Justices in the majority had broader implications.
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For the past three decades, these interpretations have posed a very high hurdle for state legislatures considering the passage of new laws permitting the death penalty for the rape of a child. The enactment and implementation of any new state death penalty statute—and particularly a new type of statute such as one that specifically targets the rape of young children—imposes many costs. There is the burden of drafting an innovative law that must take into account this Court’s exceedingly complex Eighth Amendment jurisprudence. Securing passage of controversial
legislation may interfere in a variety of ways with the enactment of other bills on the legislative agenda. Once the statute is enacted, there is the burden of training
and coordinating the efforts of those who must implement the new law. Capital prosecutions are qualitatively more difficult than noncapital prosecutions and impose special emotional burdens on all involved. When a capital sentence is imposed under the new law, there is the burden of keeping the prisoner on death row and the lengthy and costly project of defending the constitutionality of the statute on appeal and in collateral proceedings. And if the law is eventually overturned, there is the burden of new proceedings on remand. Moreover, conscientious state lawmakers, whatever their personal views about the morality of imposing the death penalty for child rape, may defer to this Court’s dicta, either because they respect our
authority and expertise in interpreting the Constitution or merely because they do not relish the prospect of being held to have violated the Constitution and contravened prevailing “standards of decency.” Accordingly, the Coker dicta gave state legislators a strong incentive not to push for the enactment of new capital child-rape laws even though these legislators and their constituents may have
believed that the laws would be appropriate and desirable. Alito, J., dissenting, slip op. at 1-6.

So, as Justice Alito observes, dicta in the Court's own precedent in Coker, a 1977 case outlawing the death penalty for the crime of rape of an adult woman, has likely discouraged state legislatures from passing death penalty legislation for the exact crime at issue here (child rape). The majority then uses the fact that only six states have the death penalty for rape of a child as evidence of a "national consensus" against such punishment, even though that low number is likely due, at least in part, to the Court's own prior rulings.

The dissent continues, pointing out the majority's imposition of their own policy judgments for that of elected state legislatures:

A major theme of the Court’s opinion is that permitting the death penalty in child-rape cases is not in the best interests of the victims of these crimes and society at large. In this vein, the Court suggests that it is more painful for child-rape victims to testify when the prosecution is seeking the death penalty. Ante, at 32. The Court also argues that “a State that punishes child rape by death may remove a strong incentive for the rapist not to kill the victim,” ante, at 35, and may discourage the reporting of child rape, ante, at 34–35. These policy arguments, whatever their merits, are simply not pertinent to the question whether the death penalty is “cruel and unusual” punishment. The Eighth Amendment protects the right of an accused. It does not authorize this Court to strike down federal or state criminal laws on the ground that they are not in the best interests of crime victims or the broader society. The Court’s policy arguments concern matters that legislators should—and presumably do—take into account in deciding whether to enact a capital child-rape statute, but these arguments are irrelevant to the question that is before us in this case. [emphasis added] Our cases have cautioned against using “ ‘the aegis of the Cruel and Unusual Punishment Clause’ to cut off the normal democratic processes,” Atkins v. Virginia, 536 U. S. 304, 323 (2002) (Rehnquist, C. J., dissenting), in turn quoting Gregg v. Georgia, 428 U. S. 153, 176 (1976), (joint opinion of Stewart, Powell, and STEVENS, JJ.), but the Court forgets that warning here.
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In summary, the Court holds that the Eighth Amendment categorically rules out the death penalty in even the most extreme cases of child rape even though: (1) This
holding is not supported by the original meaning of the Eighth Amendment; (2) neither Coker nor any other prior precedent commands this result; (3) there are no reliable “objective indicia” of a “national consensus” in support of the Court’s position; (4) sustaining the constitutionality of the state law before us would not “extend” or “expand” the death penalty; (5) this Court has previously rejected the proposition that the Eighth Amendment is a one-way ratchet that prohibits legislatures from adopting new capital punishment statutes to meet new problems; (6) the worst child rapists exhibit the epitome of moral depravity; and (7) child rape inflicts grievous injury on victims and on society in general. Id. at 15-24.

Whatever your position on the death penalty, it seems to me that the policy judgment of whether to impose it for a particular crime, or whether to abolish it altogether, is one that is best left to the democratic process and the elected branches, rather than the judiciary (in this case five unelected individuals). Constitutional provisions ought to be interpreted in light of their meaning, however broad or narrow, at the time of adoption, and not be subject to the policy whims of the judiciary. This is particularly true where the death penalty was historically an accepted punishment at the time the constitutional provision(s) relied upon to strike down the statute here was adopted. In matters of crime and punishment, the people, through their elected representatives and through public debate, ought to be able to decide.

Sadly, the Court's ruling effectively deprives state legislatures and the people they represent of that choice (absent an amending of the federal Constitution, of course). Today, the emperor has no clothes.