Alito drafted the dissent and was joined by Thomas, Scalia, and Roberts. The dissent is notable because this is the first time four Justices have seemingly eschewed modern 8th Amendment methodology in favor of an originalist analysis. As Alito makes clear at the outset:
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.’ ”
Alito then launched into a scathing attack of the majority. He argued that the majority's count of states against capital child rape statutes is flawed:
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.
Alito returned to this point in more detail later, but I am wholly unimpressed with this portion of the dissent. In hindsight, it is easy for states to say that was the reason they didn't adopt capital child rape statutes. However, the legislative histories of the debates about such statutes rarely indicate a concern with constitutionality (there was usually little to no legislative history at all). Yet, many states felt free to discuss the possibility of such statutes even after Coker. Even when a few states drafted an amicus brief making this argument, they couldn't get more than a small handful of politicians and prosecutors in a small number of states to support this contention. What reliable evidence, then, is the dissent using to make its argument? The dissent cites state court opinions showing an expansive reading of Coker. However, several of those state legislators still discussed capital rape statutes and abandoned such laws for unknown reasons. Additionally, it has been over a decade since the Louisiana Supreme Court ruled that capital child rape statutes presented no 8th Amendment problems. Surely, that would have provided political and legal cover to states that wanted to adopt similar laws (and a few states did). I would have been more satisfied had they simply said the handful of states is sufficient to show a trend (in line with Atkins).
And it is the discussion of Atkins and other recent cases to which Scalia next turned:
Because of the effect of the Coker dicta, the Court is plainly wrong in comparing the situation here to that in Atkins or Roper v. Simmons, 543 U. S. 551 (2005). See ante, at 14–15. Atkins concerned the constitutionality of imposing the death penalty on a mentally retarded defendant. Thirteen years earlier, in Penry v. Lynaugh, 492 U. S. 302 (1989), the Court had held that this was permitted by the Eighth Amendment, and therefore, during the time between Penry and Atkins, state legislators had reason to believe that this Court would follow its prior precedent and uphold statutes allowing such punishment. The situation in Roper was similar. Roper concerned a challenge to the constitutionality of imposing the death penalty on a defendant who had not reached the age of 18 at the time of the crime. Sixteen years earlier in Stanford v. Kentucky, 492 U. S. 361 (1989), the Court had rejected a similar challenge, and therefore state lawmakers had cause to believe that laws allowing such punishment would be sustained.
Alito then argued that there have been some important changed circumstances since Coker in terms of abuse of children:
Such a development would not be out of step with changes in our society’s thinking since Coker was decided. During that time, reported instances of child abuse have increased dramatically;2 and there are many indications of growing alarm about the sexual abuse of children. In 1994, Congress enacted the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Program, 42 U. S. C. §14071 (2000 ed. and Supp. V), which requires States receiving certain federal funds to establish registration systems for convicted sex offenders and to notify the public about persons convicted of the sexual abuse of minors. All 50 States have now enacted such statutes.3 In addition, at least 21 States and the District of Columbia now have statutes permitting the involuntary commitment of sexual predators,4 and at least 12 States have enacted residency restrictions for sex offenders.
I think Alito is abusing some social science data here (which is further analyzed in the accompanying footnotes. None of the numbers cited actually apply to the crime of child rape. Instead, the numbers include a much larger population - child abuse and child sexual abuse. There is also no attempt to account for increases in reporting. There is no actual evidence that child rape has increased since the decision in Coker. And the mention of involuntary commitment and residency restrictions is just nonsense in my opinion. Those laws have no relevance to the decision to apply the death penalty to a certain body of child rapists.
Alito then discussed the other states that have considered the death penalty in recent months:
On the contrary, the available evidence suggests otherwise.
For example, in Colorado, the Senate Appropriations Committee in April voted 6 to 4 against Senate Bill 195, reportedly because it “would have cost about $616,000 next year for trials, appeals, public defenders, and prison costs.” Associated Press, Lawmakers Reject Death Penalty for Child Sex Abusers, Denver Post, Apr. 11, 2008. Likewise, in Tennessee, the capital child-rape bill was withdrawn in committee “because of the high associated costs.” The bill’s sponsor stated that “ ‘[b]ecause of the state’s budget situation, we thought to with-draw that bill. . . . We’ll revisit it next year to see if we can reduce the cost of the fiscal note.’ ” Green, Small Victory in Big Fight for Tougher Sex Abuse Laws, The Leaf-Chronicle, May 8, 2008, p. 1A. Thus, the failure to enact capital child-rape laws cannot be viewed as evidence of a moral consensus against such punishment.
This seems to create some substantial dissonance with Alito's earlier argument that Coker was the reason states didn't adopt capital child rape statutes. As I mentioned, there is little legislative history to support the contention of the dissent. And these recent cases are counter-indicative of such a trend.
Alito's dissent is at its strongest when he addresses the theoretical problems with assessing trends:
The Court is willing to block the potential emergence of a national consensus in favor of permitting the death penalty for child rape because, in the end, what matters is the Court’s “own judgment” regarding “the acceptability of the death penalty.” Ante, at 24. Although the Court has much to say on this issue, most of the Court’s discussion is not pertinent to the Eighth Amendment question at hand. And once all of the Court’s irrelevant arguments are put aside, it is apparent that the Court has provided no coherent explanation for today’s decision.
I agree that this is a major defect in the Court's current methodology. When does the Court step in to assess a trend? If they are too quick, a trend has no time to develop. In the meantime, states may be reluctant to decide what to do until the Court rules. So this double-bind makes bean-counting a potentially unreliable technique.
Alito then dismissed the policy questions about the statute entirely:
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.
While I have argued that the policy considerations have only a tangential role, Alito is making a point inconsistent with a lot of prior case law. Typically, the policy considerations are relevant insofar as they show that the statute serves (or doesn't serve) the goals of punishment. I should note that Orin Kerr finds this portion of the dissent particularly devastating to the majority opinion.
The diseent then moved to embrace a principle that state death penalty laws are presumptively constitutional (citing prior case law on this point). However, there is not too much detail (and there doesn't need to be since the opinion is a dissent) how such a presumption could be rebutted.
Alito finally moved to his conclusion by arguing a couple of interesting hypotheticals:
With respect to the question of moral depravity, is it really true that every person who is convicted of capital murder and sentenced to death is more morally depraved than every child rapist? Consider the following two cases. In the first, a defendant robs a convenience store and watches as his accomplice shoots the store owner. The defendant acts recklessly, but was not the triggerman and did not intend the killing. See, e.g., Tison v. Arizona, 481 U. S. 137 (1987). In the second case, a previously convicted child rapist kidnaps, repeatedly rapes, and tortures multiple child victims. Is it clear that the first defendant is more morally depraved than the second?
I think the answer to Alito's two examples is obviously "no." It is not clear at all that the first defendant is more morally depraved. However, I'm not sure how this arguments fits into 8th Amendment jurisprudence as the Amendment has never been interpreted to require that only the absolute worst be executed and that defendants can escape punishment by pointing to someone else is more morally depraved who did not receive the death penalty.
And so Alito concluded:
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.
I have to admit being sorely disappointed in the dissent's analysis as to (1). There is virtually no discussion that child rape can be punished by death under the original meaning of the 8th Amendment. The Court takes this point for granted whereas I think the picture is much more complicated (and such a holding would surely require a reversal of Coker which the dissent doesn't support).