Wednesday, June 25, 2008

Kennedy v. Louisiana Reversed and Remanded

I haven't yet had time to read or process the complete opinion (much less the dissent - all by the usual suspects), but I wanted to post in case you haven't heard. Today the Supreme Court ruled, 5-4,  that imposing the death penalty for the rape of a child was unconstitutional. You may recall that I wrote about this case earlier this year.

If you would like to read the full opinion, written by Justice Kennedy, please click here.

What follows is the content of an email I received from an attorney friend, who cut and pasted it from a summary bulletin sent out by the Court; thanks, F.G.


Web-accessible at:

Argued: April 16, 2008 -- Decided: June 25, 2008
Opinion author: Kennedy

Louisiana charged petitioner with the aggravated rape of
his then-8-year-old stepdaughter. He was convicted and
sentenced to death under a state statute authorizing capital
punishment for the rape of a child under 12. The State
Supreme Court affirmed, rejecting petitioner's reliance
on Coker v. Georgia, 433 U. S. 584 , which barred the use
of the death penalty as punishment for the rape of an adult
woman but left open the question which, if any, other nonhomicide
crimes can be punished by death consistent with the Eighth
Amendment. Reasoning that children are a class in need
of special protection, the state court held child rape
to be unique in terms of the harm it inflicts upon the
victim and society and concluded that, short of first-degree
murder, there is no crime more deserving of death. The
court acknowledged that petitioner would be the first person
executed since the state law was amended to authorize the
death penalty for child rape in 1995, and that Louisiana
is in the minority of jurisdictions authorizing death for
that crime. However, emphasizing that four more States
had capitalized child rape since 1995 and at least eight
others had authorized death for other nonhomicide crimes,
as well as that, under Roper v. Simmons, 543 U. S. 551
, and Atkins v. Virginia, 536 U. S. 304 , it is the direction
of change rather than the numerical count that is significant,
the court held petitioner's death sentence to be constitutional.

Held: The Eighth Amendment bars Louisiana from imposing
the death penalty for the rape of a child where the crime
did not result, and was not intended to result, in the
victim's death. Pp. 8-36.

1. The Amendment's Cruel and Unusual Punishment Clause
"draw[s] its meaning from the evolving standards of decency
that mark the progress of a maturing society." Trop v.
Dulles, 356 U. S. 86 . The standard for extreme cruelty
"itself remains the same, but its applicability must change
as the basic mores of society change." Furman v. Georgia,
408 U. S. 238 . Under the precept of justice that punishment
is to be graduated and proportioned to the crime, informed
by evolving standards, capital punishment must "be limited
to those offenders who commit 'a narrow category of the
most serious crimes' and whose extreme culpability makes
them 'the most deserving of execution.' " Roper, supra,
at 568. Applying this principle, the Court held in Roper
and Atkins that the execution of juveniles and mentally
retarded persons violates the Eighth Amendment because
the offender has a diminished personal responsibility for
the crime. The Court also has found the death penalty disproportionate
to the crime itself where the crime did not result, or
was not intended to result, in the victim's death. See,
e.g., Coker, supra; Enmund v. Florida, 458 U. S. 782 .
In making its determination, the Court is guided by "objective
indicia of society's standards, as expressed in legislative
enactments and state practice with respect to executions."
Roper, supra, at 563. Consensus is not dispositive, however.
Whether the death penalty is disproportionate to the crime
also depends on the standards elaborated by controlling
precedents and on the Court's own understanding and interpretation
of the Eighth Amendment's text, history, meaning, and purpose.
Pp. 8-10.

2. A review of 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,
demonstrates a national consensus against capital punishment
for the crime of child rape. Pp. 11-23.

(a) The Court follows the approach of cases in which objective
indicia of consensus demonstrated an opinion against the
death penalty for juveniles, see Roper, supra, mentally
retarded offenders, see Atkins, supra, and vicarious felony
murderers, see Enmund, supra. Thirty-seven jurisdictions--36
States plus the Federal Government--currently impose capital
punishment, but only six States authorize it for child
rape. In 45 jurisdictions, by contrast, petitioner could
not be executed for child rape of any kind. That number
surpasses the 30 States in Atkins and Roper and the 42
in Enmund that prohibited the death penalty under the circumstances
those cases considered. Pp. 11-15.

(b) Respondent's argument that Coker's general discussion
contrasting murder and rape, 433 U. S., at 598, has been
interpreted too expansively, leading some States to conclude
that Coker applies to child rape when in fact it does not,
is unsound. Coker's holding was narrower than some of its
language read in isolation indicates. The Coker plurality
framed the question as whether, "with respect to rape of
an adult woman," the death penalty is disproportionate
punishment, id., at 592, and it repeated the phrase "adult
woman" or "adult female" eight times in discussing the
crime or the victim. The distinction between adult and
child rape was not merely rhetorical; it was central to
Coker's reasoning, including its analysis of legislative
consensus. See, e.g., id., at 595-596. There is little
evidence to support respondent's contention that state
legislatures have understood Coker to state a broad rule
that covers minor victims, and state courts have uniformly
concluded that Coker did not address that crime. Accordingly,
the small number of States that have enacted the death
penalty for child rape is relevant to determining whether
there is a consensus against capital punishment for the
rape of a child. Pp. 15-20.

(c) A consistent direction of change in support of the
death penalty for child rape might counterbalance an otherwise
weak demonstration of consensus, see, e.g., Atkins, 536
U. S., at 315, but no showing of consistent change has
been made here. That five States may have had pending legislation
authorizing death for child rape is not dispositive because
it is not this Court's practice, nor is it sound, to find
contemporary norms based on legislation proposed but not
yet enacted. Indeed, since the parties submitted their
briefs, the legislation in at least two of the five States
has failed. Further, evidence that, in the last 13 years,
six new death penalty statutes have been enacted, three
in the last two years, is not as significant as the data
in Atkins, where 18 States between 1986 and 2001 had enacted
legislation prohibiting the execution of mentally retarded
persons. See id., at 314-315. Respondent argues that this
case is like Roper because, there, only five States had
shifted their positions between 1989 and 2005, one less
State than here. See 543 U. S., at 565. But the Roper Court
emphasized that the slow pace of abolition was counterbalanced
by the total number of States that had recognized the impropriety
of executing juvenile offenders. See id., at 566-567. Here,
the fact that only six States have made child rape a capital
offense is not an indication of a trend or change in direction
comparable to the one in Roper. The evidence bears a closer
resemblance to that in Enmund, where the Court found a
national consensus against death for vicarious felony murder
despite eight jurisdictions having authorized it. See458
U. S., at 789, 792. Pp. 20-22.

(d) Execution statistics also confirm that there is a social
consensus against the death penalty for child rape. Nine
States have permitted capital punishment for adult or child
rape for some length of time between the Court's 1972 Furman
decision and today; yet no individual has been executed
for the rape of an adult or child since 1964, and no execution
for any other nonhomicide offense has been conducted since
1963. Louisiana is the only State since 1964 that has sentenced
an individual to death for child rape, and petitioner and
another man so sentenced are the only individuals now on
death row in the United States for nonhomicide offenses.
Pp. 22-23.

3. Informed by its own precedents and its understanding
of the Constitution and the rights it secures, the Court
concludes, in its independent judgment, that the death
penalty is not a proportional punishment for the crime
of child rape. Pp. 23-35.

(a) The Court's own judgment should be brought to bear
on the death penalty's acceptability under the Eighth Amendment.
See, e.g., Coker, supra, at 597. Rape's permanent and devastating
impact on a child suggests moral grounds for questioning
a rule barring capital punishment simply because the crime
did not result in the victim's death, but it does not follow
that death is a proportionate penalty for child rape. The
constitutional prohibition against excessive or cruel and
unusual punishments mandates that punishment "be exercised
within the limits of civilized standards." Trop, 356 U.
S., at 99-100. Evolving standards of decency counsel the
Court to be most hesitant before allowing extension of
the death penalty, especially where no life was taken in
the commission of the crime. See, e.g., Coker, 433 U. S.,
at 597-598; Enmund, 458 U. S., at 797. Consistent with
those evolving standards and the teachings of its precedents,
the Court concludes that there is a distinction between
intentional first-degree murder on the one hand and nonhomicide
crimes against individuals, 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
compare to murder in their "severity and irrevocability,"
id, at 598.The Court finds significant the substantial
number of executions that would be allowed for child rape
under respondent's approach. Although narrowing aggravators
might be used to ensure the death penalty's restrained
application in this context, as they are in the context
of capital murder, all such standards have the potential
to result in some inconsistency of application. The Court,
for example, has acknowledged that the requirement of general
rules to ensure consistency of treatment, see, e.g., Godfrey
v. Georgia, 446 U. S. 420 , and the insistence that capital
sentencing be individualized, see, e.g., Woodson v. North
Carolina, 428 U. S. 280 , have resulted in tension and
imprecision. This approach might be sound with respect
to capital murder but it should not be introduced into
the justice system where death has not occurred. The Court
has spent more than 32 years developing a foundational
jurisprudence for capital murder to guide the States and
juries in imposing the death penalty. Beginning the same
process for crimes for which no one has been executed in
more than 40 years would require experimentation in an
area where a failed experiment would result in the execution
of individuals undeserving of death. Pp. 24-30.

(b) The Court's decision is consistent with the justifications
offered for the death penalty, retribution and deterrence,
see, e.g., Gregg v. Georgia, 428 U. S. 153 . Among the
factors for determining whether retribution is served,
the Court must look to whether the death penalty balances
the wrong to the victim in nonhomicide cases. Cf. Roper,
supra, at 571. It is not at all evident that the child
rape victim's hurt is lessened when the law permits the
perpetrator's death, given that capital cases require a
long-term commitment by those testifying for the prosecution.
Society's desire to inflict death 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.
There are also relevant systemic concerns in prosecuting
child rape, including the documented problem of unreliable,
induced, and even imagined child testimony, which creates
a "special risk of wrongful execution" in some cases. Cf.
Atkins, supra, at 321. As to deterrence, the evidence suggests
that the death penalty may not result in more effective
enforcement, but may add to the risk of nonreporting of
child rape out of fear of negative consequences for the
perpetrator, especially if he is a family member. And,
by in effect making the punishment for child rape and murder
equivalent, a State may remove a strong incentive for the
rapist not to kill his victim. Pp. 30-35.

4. The concern that the Court's holding will effectively
block further development of a consensus favoring the death
penalty for child rape overlooks the principle 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. Confirmed by the Court's repeated,
consistent rulings, this principle requires that resort
to capital punishment be restrained, limited in its instances
of application, and reserved for the worst of crimes, those
that, in the case of crimes against individuals, take the
victim's life. P. 36.

957 So. 2d 757, reversed and remanded.

Kennedy, J., delivered the opinion of the Court, in which
Stevens, Souter, Ginsburg, and Breyer, JJ., joined. Alito,
J., filed a dissenting opinion, in which Roberts, C. J.,
and Scalia and Thomas, JJ., joined.

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