An Originalist Argument in Favor of the Petitioner in Kennedy v. Louisiana

It seems like the Petitioner has close to a slam-dunk case under the existing evolving standards of decency approach to cruel and unusual punishment.  I'm wondering if Scalia, Thomas, Roberts, Alito, and maybe Kennedy will move to a wholly originalist methodology or to a watered-down version of evolving standards which is essentially originalist. 

So, what happens if the Court moves in an originalist direction?  Does the Petitioner automatically lose?  After all, at the time of the founding of the Republic, a lot of crimes were death penalty crimes.  And there were a lot of punishments that were acceptable that we find inhumane today.  Even Scalia has said he wouldn't support a pure originalism in Eighth Amendment cases (this is what triggered the whole "faint-hearted originalism" discussion with Randy Barnett and others).  While it may seem that the early history of America makes any cruel and unusual claim hard to win, I think the Petitioner might have the better side of the argument if the Court adopts an originalist perspective.

A careful examination of the historical record at the time of the ratification of the Bill of Rights yields no substantial evidence to support the constitutionality of applying the death penalty to child rape cases. While the use of the death penalty for sexual violence crimes was more common in early American history than today, this general trend is easily distinguished from the present case.  While there were a greater number of executions for the rape of an adult woman historically, records do not show the same trend for sex crimes against children. This is largely because child molestation was not viewed as the serious offense that it is today (odd as that may seem). Thus, while an originalist position might possibly support a different outcome in Coker, it does not support the constitutionality of the Louisiana statute at issue in the present matter.

The State might argue in favor of an originalist view that the prevalence of rape for the crime of raping an adult woman supports a general finding that the historical practices favor the constitutionality of the death penalty in all cases of sexual violence. However, this argument would contradict the distinction between the rape of an adult and a child that is the entire basis of the State’s argument why Coker does not control in this case.

In early America, capital rape statutes, when not focused on consensual adulterous relationships, were designed to prevent African-American slaves from raping adult white women.  In Texas, Florida, Louisiana, Mississippi, South Carolina, and Tennessee, rape was only a death penalty crime when the perpetrator was a slave and the victim was white.  This racial rationale for making the death penalty a capital crime (in addition to being morally ugly) does not extend to child molestation cases.

So, while there may have been a strong originalist case in Coker, there is scant historical evidence to support a finding for the State in Kennedy v. Louisiana.

Comments

[jvarisco]

Are you not assuming here there is a presumption that the death penalty is unconstitutional in a given situation unless there is evidence otherwise? I'm not sure how the severity of certain offenses at the time is really relevant - the question for an originalist should involve whether the death penalty was permissible for a crime of a certain severity. Certainly the government is free to raise/lower sentences as times change; while adult rape used to be a greater crime, now child rape is. The question is whether death is appropriate for a crime that does not take a life - I think the answer here for an originalist is relatively simple.

[Corey Rayburn Yung]

jvarisco,

I don't think I'm saying there is a "presumption" against a death sentence being unconstitutional, but I think that is a fair reading. What I was trying to argue is that given the incredible number of crimes for which capital punishment was regularly applied at the country's founding, the lack of death sentences for molesters is notable. From that we might infer that it was treated as a non-capital offense intentionally.

However, there are a couple of problems we run into. Child molestation wasn't really a separate crime in that era. It's not clear what to do with that fact. Also, we don't have great historical records of the facts of capital cases from that era.

With that being said, the rationales for death sentences in rape of adult cases don't carry over well to the child context (crimes by slaves and regulating adultery). It's also true that during most of American history, child molestation was not consider as dangerous of a crime as it is today. That may seem strange, but I think the primary reason is that most perpetrators were family members or very close family friends. The matters were often swept under the rug and not treated the same way as they are now (although underreporting continues to be a problem).

I think categorizing crimes into only two categories (non-homicide and homicide) is a mistake for an originalist analysis. I think most, if not all, originalists (even the non-faint-hearted ones) would think the death penalty for jaywalking or littering would be cruel and unusual punishment. To say otherwise would be to abandon any proportionality idea from the 8th Amendment. And proportionality existed long before the recent line of evolving standards of decency cases.

So, while I think there is a decent originalist argument for saying that child rape could be a capital crime, I think it is impossible to say so without reversing Coker (which I think Roberts and Alito might be less inclined to do) and potentially reversing every proportionality case (which everyone but Thomas might be troubled by).

CRY