Kennedy v. Louisiana - The Majority Opinion

The structure of the majority opinion resembles the methodology of other recent 8th Amendment challenges. As the opinion states:

The existence of objective indicia of consensus against making a crime punishable by death was a relevant concern in Roper, Atkins, Coker, and Enmund, and we follow the approach of those cases here. The history of the death penalty for the crime of rape is an instructive beginning point.

The court continued to use its "bean-counting" approach to determine if there was some sort of consensus or trend in favor of applying the death penalty in these cases. As I thought would happen, the Court continues to count states without any death penalty as part of those that are for any limitation on the death penalty:

By contrast, 44 States have not made child rape a capital offense. As for federal law, Congress in the Federal Death Penalty Act of 1994 expanded the number of federal crimes for which the death penalty is a permissible sentence, including certain nonhomicide offenses; but it did not do the same for child rape or abuse....

The evidence of a national consensus with respect to the death penalty for child rapists, as with respect to juveniles, mentally retarded offenders, and vicarious felony murderers, shows divided opinion but, on balance, an opinion against it. Thirty-seven jurisdictions—36 States plus the Federal Government—have the death penalty. As mentioned above, only six of those jurisdictions authorize the death penalty for rape of a child. Though our review of national consensus is not confined to tallying the number of States with applicable death penalty legislation, it is of significance that, in 45 jurisdictions, petitioner could not be executed for child rape of any kind. That number surpasses the 30 States in Atkins and Roper and the 42 States in Enmund that prohibited the death penalty under the circumstances those cases considered.

The Court then rejects the state's attempts to argue that Coker deterred states from adopting the child rape statutes (and thus, the count of states in favor of capital rape statutes is inherently too low):

Still, respondent contends, it is possible that state legislatures have understood Coker to state a broad rule that covers the situation of the minor victim as well. We see little evidence of this. Respondent cites no reliable data to indicate that state legislatures have read Coker to bar capital punishment for child rape and, for this reason, have been deterred from passing applicable death penalty legislation. In the absence of evidence from those States where legislation has been proposed but not enacted we refuse to speculate about the motivations and concerns of particular state legislators.

This was always a tricky point for the state. On the one hand, the state wanted to argue that Coker is distinguishable and not controlling. On the other hand, they wanted to argue that the states felt Coker was controlling (even though it wasn't) and thus, more states really should be counted as being in favor of capital child rape statutes. Here, the Court uses the state's arguments against each other.

The Court moved beyond the legislative bean-counting and found that other objective indicators supported striking down the Louisiana statute:

There are measures of consensus other than legislation. Statistics about the number of executions may inform the consideration whether capital punishment for the crime of child rape is regarded as unacceptable in our society.... These statistics confirm our determination from our review of state statutes that there is a social consensus against the death penalty for the crime of child rape.

I think the key factors here were the limited number of persons on death row (2) and the number of persons actually executed (0).

The Court then moved beyond the objective indicators to a subjective analysis. The Court looks at analogies to other death penalty crimes which don't involve murder. This is one of the key points in determining the scope of today's opinion. Here the court distinguishes child rape from other death-eligible crimes because rape is a crime against an individual person:

Our concern here is limited to crimes against individual persons. We do not address, for example, crimes defining and punishing treason, espionage, terrorism, and drug kingpin activity, which are offenses against the State. As it relates to crimes against individuals, though, the death penalty should not be expanded to instances where the victim’s life was not taken.

The Court was also quite concerned at the number of potential defendants who would be eligible for the death penalty under statutes like the Louisiana one.

The opinion then turns to a discussing of whether the death penalty in this case supports the goals of punishment. The Court found that the punishment was excessive to achieve the goals of retribution. Then, like me, the Court found that the statute might serve counter-productive deterrence functions.  In fact, on this point, I was quite humbled to see that the Court cited a law review article of mine in its discussion:

In addition, by in effect making the punishment for child rape and murder equivalent, a State that punishes child rape by death may remove a strong incentive for the rapist not to kill the victim. Assuming the offender behaves in a rational way, as one must to justify the penalty on grounds of deterrence, the penalty in some respects gives less protection, not more, to the victim, who is often the sole witness to the crime. See Rayburn, Better Dead Than R(ap)ed?: The Patriarchal Rhetoric Driving Capital Rape Statutes, 78 St. John’s L. Rev. 1119, 1159–1160 (2004).

After all of this analysis, the Court concluded:

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. The judgment of the Supreme Court of Louisiana upholding the capital sentence is reversed.

Related Posts:

Kennedy v. Louisiana - An Assessment of the Opinions

Kennedy v. Louisiana - Alito's Dissent

Comments

[KipEsquire]

Congrats on the cite...

[Corey Rayburn Yung]

Thanks. It was an unexpected, but wonderful surprise.

[rn]

I'm enjoying your site.

Wouldn't it have been a lot easier for Kennedy to just say that Coker v. Georgia controls the outcome of this case? After all, as Alito points out his dissent, most commentators, not to mention Powell's concurrence in Coker, concluded that the holding in Coker limited the death penalty to homicide offenses.

[Corey Rayburn Yung]

The majority could have just stated that Coker decided the big question, but the Court would still have to decide if circumstances had changed since Coker (as they did with the juvenile death penalty). Once they go down that train of thought, the clear controlling nature of Coker would tend to undermine the majority argument since you would never expect a national trend to emerge in opposition to Coker. So, although the majority could follow that line of argument they would end up in the same bind that I see for Alito's dissent (not that the double-bind stopped Alito from making both arguments).

Thanks for reading,

Corey

[ohwilleke]

The cite of your article is a quite clever move by the majority. The proposition you are cited for is common place logic which really requires no citation at all. But by choosing your article to cite for that proposition, the majority is implicitly taking a jab at the value system that forms a basis for the dissenting opinion.

[rn]

Certainly, stating that Coker controls the outcome would work against the majority's argument about national trends. But wouldn't it be sounder to rely on a stare decisis argument? It seems difficult to argue that the handful of states that had passed child rape DP laws represented an "emerging consensus" that mandated overruling Coker, if Coker was indeed controlling precedent. By not acknowledging Coker as precedent, J. Kennedy sticks himself with the burden on the "emerging consensus" issue.

[Corey Rayburn Yung]

I think the problem is that Coker stands for "bean-counting" and the idea of a changing national consensus. You can't say Coker controls and then discount all the methodology in the opinion. The very nature of Coker is such that it requires the Court to reexamine evolving standards from time to time.

And given that Coker repeatedly says "adult woman," there is a strong argument for distinguishing its holding. I'm not as persuaded as much as some, but perhaps Kennedy was honestly persuaded that Coker didn't control the outcome.

Corey

[RCinProv]

"Assuming the offender behaves in a rational way..."

And why would we assume that? Rational people do not rape children in the first place. The idea that child rapists will apply logic and rationality to acts that simply cannot be explained in those terms is, well, illogical. These perpetrators, almost by definition, are not rational actors. It's people who would never commit these crimes who see and understand the logic of such arguments!

[RCinProv]

p.s. Today's Providence Journal carries the story about the sentencing of Joshua Davis, who raped and killed an 8-year-old girl in a state that famously has not had a death penalty in decades.

Davis might have received life with a chance of parole had he not kiled his victim; instead, he did the "illogical" thing and killed her, assuring himself life without parole.

Why? As explained in the story: Joshua Davis penned a letter in which he described catching a mermaid and taking her for a cruise in his boat. “I decided I couldn’t let her leave, because if she swam back, the sharks would be looking for me,” he wrote, “so I enjoyed my catch.”

So much for the "logic" of how a child rapist assesses the likely penalities while commiting such crimes.

[rn]

I agree with you - Kennedy does seem committed to his national consensus approach, so much so that he feels it necessary to deny that Coker is controlling precedent. My point is: Why make the argument harder than it needs to be? This seems to be a running theme in J. Kennedy's opinions. . .

I'm going to be discussing the Kennedy opinion in my blog over the next few days. If you'd like to visit (click on my name), I'd sure appreciate your input.