The Other Argument in Kennedy

The first argument being argued in Kennedy, that capital child rape statutes are (not) part of an evolving standard of decency, has overshadowed the second argument in media and web coverage.  The second argument concerns whether the class of defendants is sufficiently narrowed under the Louisiana statute.  Because the aggravating factors that applied to Kennedy were also elements of the crime, there is a real question over whether any narrowing has occurred. The government almost dismisses this argument out of hand in its brief.  Basically, this is the heart of the government's position on the issue:

The capital sentencing scheme must “genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant” than on others. Zant v. Stephens, 462 U.S. 862, 877 (1983); Lowenfield v. Phelps, 484 U.S. 231 (1988). This can be accomplished in one of two ways: (1) the legislature may itself narrow the definition of capital offenses, or (2) the legislature may broadly define capital offenses and provide for narrowing by jury findings of aggravating circumstances at the penalty phase. Lowenfield, 484 U.S. at 246. Louisiana has chosen the first method, in that the legislature has narrowly defined the definition of offenses which are punishable by death during the guilt phase. Jt. App. 60a.

Louisiana seems completely untroubled by the second argument and only spends two pages in its brief on the issue. I think there are two potential problems with the government position, however. 

First, the citation to Lowenfield might be problematic.  The citation to Lowenfield on this issue is to page 246 of the opinion.  This is the relevant excerpt from Lowenfield:

"While Texas has not adopted a list of statutory aggravating circumstances the existence of which can justify the imposition of the death penalty as have Georgia and Florida, its action in narrowing the categories of murders for which a death sentence may ever be imposed serves much the same purpose. . . . In fact, each of the five classes of murders made capital by the Texas statute is encompassed in Georgia and Florida by one or more of their statutory aggravating circumstances. . . . Thus, in essence, the Texas statute requires that the jury find the existence of a statutory aggravating circumstance before the death penalty may be imposed. So far as consideration of aggravating circumstances is concerned, therefore, the principal difference between Texas and the other two States is that the death penalty is an available sentencing option -- even potentially -- for  [*246]  a smaller class of murders in Texas." 428 U.S., at 270-271 (citations omitted). It seems clear to us from this discussion that the narrowing function required for a regime of capital punishment may be provided in either of these two ways: The legislature may itself narrow the definition of capital offenses, as Texas and Louisiana have done, so that the jury finding of guilt responds to this concern, or the legislature may more broadly define capital offenses and provide for narrowing by jury findings of aggravating circumstances at the penalty phase. See also Zant, supra, at 876, n. 13, discussing Jurek and concluding: "[I]n Texas, aggravating and mitigating circumstances were not considered at the same stage of the criminal prosecution."

Lowenfield relies on Jurek v. Texas to make this argument and Jurek has been subsequently overturned in Abdul-Kabir v. Quarterman, 127 S. Ct. 1654.  Reading Abdul-Kabir, it is difficult to determine if the relevant section of Jurek is still good law.  I think there is more than enough wiggle room in this area for the petitioner to argue that Lowenfield's largely throwaway statement of law is no longer controlling.  Consequently, narrowing at a pre-guilt phase may not survive constitutional analysis.

Second, there is a some tension in the government's position on the second argument in relation to its position on the first. On the first point, the government argues that Coker doesn't control because child rapists are a unique class.  They are more dangerous perpetrators, target more vulnerable victims, and are a separate population than those covered by the Coker statute. However, in the second argument, Louisiana must prove that the population of eligible defendants is somehow narrowed.  But if child rapists are a unique class, how does any narrowing occur?  Notably, the Louisiana has amended its statute to allow further narrowing by changing the guilt phase age of the victim from the one that triggers death penalty eligibility.

I'm sure this issue will never get the same press, but if the Court finds tension in Louisiana's positions and/or finds guilt phase narrowing insufficient, we might see a coalition emerge that rejects the Louisiana statute without deciding the first issue at all.  I assume we will get an indication tomorrow over whether any member of the Court takes the second argument seriously.