Posted on 07/02/2008 10:24:55 AM PDT by K-oneTexas
Dead Men Walking
Why Kennedy v. Louisiana could spell the beginning of the end of the death penalty.
by Erin Sheley
THERE IS MUCH TO find loathsome about Justice Kennedy's opinion in Kennedy v. Louisiana, in which the Supreme Court ruled that the Louisiana statute allowing capital punishment for child rapists is unconstitutional. Most morally disgusting is the Court's conclusory recognition of "an incongruity between the crime of child rape and the harshness of the death penalty," which in this case would have been imposed on a man whose assault on his eight-year-old stepdaughter tore her internal organs away from the inside of her body, and who attempted to implicate innocent neighborhood children as perpetrators. Most intellectually disgusting, perhaps, is the Court's attempt to establish, through a survey of legislation and state court decisions, a developing "national consensus" against imposition of the death penalty in these cases. But as Justice Alito noted in his dissent, five other states have recently enacted such laws and in the months following the Court's grant of certiorari in Kennedy, similar bills stalled in the legislatures of five other states due largely to stated concerns for the outcome of Kennedy itself. Most morbidly ironic is the Court's statement that its conclusions flowed in part from a "respect for the dignity of the person." While we are right to be outraged at these aspects of Kennedy as they relate to the crime of child rape specifically, the case is likely most significant in what it suggests about the future of the death penalty. In attempting to establish the disproportion between child rape and punishment by death, Justice Kennedy announced, in dicta, a largely new constitutional principle: "the necessity to constrain the use of the death penalty."
At first glance, Kennedy's reasoning seems in keeping with the existing line of cases construing the Eighth Amendment's prohibition against cruel and unusual punishment which, since 1910, has turned on whether a punishment is "graduated and proportioned" to the crime. In the 1958 case Trop v. Dulles, the Court held that this determination must take into account "the evolving standards of decency that mark the progress of a maturing society." With such a subjective constitutional standard, it is no surprise that most death penalty cases have been decided through free-form balancing tests. In 2002, for example, the Court held in Atkins v. Virginia that the death penalty could not apply to mentally retarded individuals, due to the fact that their decreased moral culpability obviated the penal goals of retribution and deterrence. Most recently in Roper v. Simmons (also authored by Justice Kennedy), the Court held that a juvenile under 18 could not be constitutionally sentenced to death, even for the most vicious and premeditated of murders, due to a "lack of maturity and underdeveloped sense of responsibility," a vulnerability "to negative influences including peer pressure," and possession of a character less "well formed" than that of an adult. Setting aside the speciousness of the reasoning in Roper, the opinion remained couched in terms of moral proportionality, emphasizing the language from Atkins, which acknowledged that for "a narrow category of the most serious crimes" the perpetrators' "extreme culpability" makes them "the most deserving of execution."
In Kennedy, Justice Kennedy deftly extends this limiting principle by divorcing the need to narrow the penalty almost entirely from the culpability of the defendant. This move is most clear in his shocking conclusion that the fact that child rape occurs much more often than murder, and that "there are hundreds, or more, of these convictions just in jurisdictions that permit capital punishment," cuts against allowing the death penalty. In other words, because there are so many victims, their rapists should be better protected from extreme punishment--not because they are less culpable than murderers, but because there are so many of them. "Constraining" the death penalty has become an end in and of itself.
If one accepts this remarkable proposition as constitutional fact, the impoverished reasoning throughout the rest of the opinion makes sense. With a constitutional mandate to narrow the death penalty, empirical data concerning "evolving standards of decency"--which will always reflect the varied geographical differences in American attitudes toward punishment--must always be construed to urge against it. Likewise, Kennedy's categorical failure to explain why the child rapist can never be deemed sufficiently morally depraved to warrant the penalty seems logical if culpability has ceased to be a controlling factor. (In his dissent, Alito asked whether society would truly find the accomplice to a convenience store robbery that resulted in murder by a co-conspirator more depraved than the rapist and torturer of multiple children.) One can even reconcile the strange asymmetry between Kennedy's thinking in Roper (in which he devoted many words to social scientific literature on the psychological vulnerability of children as it related to a 17-year-old murderer) and Kennedy (in which he devoted just one sentence to cite two psychological studies that found "rape has a permanent psychological, emotional, and sometimes physical impact on [a] child" and noted that "we cannot dismiss the years of long anguish that must be endured by the victim of child rape," before doing exactly that). Like evidence of national consensus, the unique vulnerability of a child is only relevant when that child is the perpetrator, rather than the victim--at least when this irregularity helps to limit the death penalty.
Kennedy may be the most significant victory for death penalty opponents since the punishment was reinstated in 1976. In overturning the Louisiana statute, Justice Kennedy stated, in dicta, 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." While the opinion specifically exempted crimes against society, such as treason and espionage, from its holding, it appears from this language that any maiming, torture, or rape of an individual human being cannot now be punished by death, and that no imaginable moral calculus will ever be deemed sufficiently constitutionally significant to change this outcome.
It is difficult to read Kennedy together with Roper and miss what appears to be the gradual evisceration of a state's right to put to death its most brutal criminals. Ironically, however, Kennedy comes on the heels of another death penalty case decided this term, Baze v. Rees, which upheld the lethal injection cocktail used by the state of Kentucky. Though Baze was decided 7-2, the badly fractured Court issued a total of seven opinions, none speaking for a five-justice majority. And in his concurrence, Justice John Paul Stevens became the fourth Justice in the history of the Court to state that any use of the death penalty violated the Eighth Amendment. In Baze, Justice Kennedy (along with Justice Alito alone) concurred in Chief Justice John Roberts's plurality opinion, which held that the cocktail would only be unconstitutional if it posed "a substantial risk of serious harm," a test which the Kentucky method passed. With the Court so fragmented on the death penalty, the resulting importance of Kennedy's swing vote makes his assault on the punishment in Roper and Kennedy even more disturbing. Even if no other justice takes Stevens's categorical position of per se unconstitutionality, the slow erosion wrought by Kennedy may have the same effect: The death penalty may end, not in fire, but in ice.
Erin Sheley is a writer and attorney in Washington, D.C.
This is ridiculous.
Any adult raping any child who has not reached puberty should be given the death penalty.
If they put him in with the general prison population, he will receive the death penalty sooner or later ... probably sooner.
The proper response would be:
Hang the rapist.
Gov. issues immediate pardons to all concerned for any “crime” involved here.
Send a call to “Justice” Kennedy to ‘kiss my a$$’ or learn to read (whichever comes first).
Call for impeachment of the Unlearned Four.
IMHO there is far too much respect for SCOTUS horseisassery, and has been for decades. Time for a change, and a State Governor should do it.
Probably not as many are their for the same reason they most likely high five each other. My state, Florida just sent a child molester and killer of an 11 year old boy to death yesterday. Time to break out more needles.
Jindal releases statement on new error identified in Supreme Court ruling
Posted: July 3, 2008 07:52 AM
BATON ROUGE, LA (WAFB) - Governor Bobby Jindal released a statement Thursday regarding a factual error the Supreme Court made in its decision to overturn the death penalty of Patrick Kennedy, who was convicted of raping a child in Louisiana.
The governor says Supreme Court overlooked the 2006 Act authorizing the death penalty for child rape under the Uniform Code of Military Justice, and instead, the court said there was no federal precedence in providing this type of sentence.
Governor Jindal said, “We have spoken to Attorney General Buddy Caldwell and the attorney who presided over this case, District Attorney Paul Connick in Jefferson Parish, and have encouraged them both to seriously review these new facts and consider petitioning the court for a rehearing.
http://www.wafb.com/global/story.asp?s=8614967
http://jurist.law.pitt.edu/paperchase/2008/07/doj-admits-overlooking-military-law-in.php
DOJ admits overlooking military law in Supreme Court child rape case
Devin Montgomery at 8:30 AM ET
Photo source or description
[JURIST] The US Department of Justice (DOJ) [official website] said Wednesday that it had mistakenly failed to brief the Supreme Court [official website] on the existence of a military law [PDF text] allowing capital punishment for child rape before the court decided the case of Kennedy v. Louisiana [Duke Law backgrounder; JURIST report]. In Kennedy, the court held 5-4 [JURIST report] that a death sentence constitutes cruel and unusual punishment when imposed for a crime in which the victim was not killed. The majority supported its reasoning by saying that very few states had such laws and that - incorrectly - there were no federal laws allowing the punishment for rape. In its admission, the DOJ noted that a 2006 amendment to the Uniform Code of Military Conduct [LII materials] does in fact allow the death penalty at court-martial for rape and child rape. Lousiana Governor Bobby Jindal [official website] has said lawyers for the state are considering whether or not to petition the court to reconsider the case. The oversight was first raised [CAAFlog post] Saturday by a civilian Air Force lawyer in his blog on military justice. The New York Times has more. The Washington Times has additional coverage.
The Supreme Court’s holding reversed a 2007 decision [PDF text] by the Supreme Court of Louisiana. The high court ruling has already been criticized by a wide range of lawmakers.
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