The Magazine

The Supreme Penalty

Arguing about the death penalty yet again.

Mar 31, 2008, Vol. 13, No. 28 • By ERIN SHELEY
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This Supreme Court term marks a crossroads for death penalty jurisprudence. For the first time since 1890, the Court is considering the constitutionality of a particular means of execution--the lethal injection cocktail currently used by most states. And it is expected to rule, in a second case, on the constitutionality of capital punishment for a crime other than murder--the rape of a child. Both cases require the Court to construe one of the most nebulous clauses of the Constitution, the Eighth Amendment's ban on "cruel and unusual punishments," as well as the controversial 2005 precedent, Roper v. Simmons.

In that case, the Court considered an appeal from Christopher Simmons, sentenced to death by a Missouri jury for abducting 46-year-old Shirley Crook from her home, wrapping her head in duct tape, hog-tying her with electrical wire, and throwing her off of a bridge to drown. The Supreme Court held that 17-year-old Simmons's sentence violated the Eighth Amendment. Writing for the majority, Justice Anthony Kennedy cited "the overwhelming weight of international opinion against the juvenile death penalty" and concluded that "the express affirmation of certain fundamental rights by other nations and peoples simply underscores the centrality of those same rights within our own heritage of freedom."

Two aspects of the ruling in Roper v. Simmons sparked contention: its dubious conclusion that Simmons--who had bragged to his friends that he could "get away with it" because he was a minor--had "a greater claim than adults to be forgiven for failing to escape negative influences," and the Court's use of foreign law to help tease this conclusion from the language of the U.S. Constitution.

The composition of the Court has significantly changed since Roper--in particular with the retirement of Sandra Day O'Connor (who has subsequently stressed the importance of relying on international and foreign courts in examining domestic issues to "create that all-important good impression" abroad). Yet all five justices forming the Roper majority remain on the Court, and this term's death penalty cases--Baze v. Rees, argued in January, and Kennedy v. Louisiana, due to be heard in April--could yield a deeper entrenchment of foreign mores as constitutional arbiters of punishment under our laws. Either way, the Court could dramatically redefine the Eighth Amendment limitations on both the scope and nature of the death penalty.

Over the years, the vagueness of the words "cruel" and "unusual" has spawned a uniquely amorphous line of precedent. In 1958 the Supreme Court held that the Eighth Amendment must draw its meaning "from the evolving standards of decency that mark the progress of a maturing society," thus charging judges with interpreting the world around them to find the meaning of the constitutional text. In 1976 the Court added that use of the death penalty must contribute to the "acceptable goals of punishment"--which it later defined as retribution against a criminal and deterrence of future crimes--and must not be "grossly out of proportion to the severity of the crime." The second criterion has left the law somewhat unsettled as to whether a crime other than murder can ever be punished by death.

To this framework, Roper added that courts must consider "objective criteria," such as the number of states allowing and using capital punishment under certain circumstances, before considering whether death is a disproportionate penalty in a particular case. In finding such disproportionality the Court deemed relevant the laws of other nations prohibiting the death penalty for offenders under 18 and international agreements such as the U.N. Convention on the Rights of the Child.

It did not, however, address precisely when international law should be taken into account, prompting Justice Antonin Scalia to note in his dissent that, to match the terms of the U.N. Convention, the United States would also have to abolish life imprisonment without the possibility of parole for minors (a punishment which the majority endorsed as an alternative to death in such cases). Now, Baze and Kennedy present two distinct Eighth Amendment problems for the Court to resolve within the structure created by Roper.

In Baze, two Kentucky death row inmates--one convicted of murdering two police officers, the other of wounding a two-year-old boy and shooting his parents to death in a parking lot--challenge the three-chemical formula used by 35 states to perform lethal injection. While the defendants do not challenge the practice of lethal injection itself, they argue that the particular cocktail in use is "highly vulnerable to multiple errors, any one of which will result in the infliction of agonizing pain." They argue that any death penalty procedure creating "unnecessary risk" of suffering should be deemed cruel and unusual, and urge that "an execution procedure creates unnecessary risk where, taken as a whole, it presents a significant risk of causing severe pain that could be avoided through the use of a reasonably available alternative or safeguard."

Should this claim be accepted by the Court, the ramifications for states' administration of capital punishment would be dramatic. The Baze defendants do not assert that the risk of pain need be great, only that it be unnecessary because an alternative means of execution is available. As long as medical science continued to generate arguably less painful alternatives for the anti-death penalty movement to champion, any method in use could be deemed unconstitutional. Because a legal challenge to a procedure can result in a moratorium on its use (indeed, a three-month nationwide moratorium on lethal injection has been in effect since the Court agreed to hear Baze), the proposed standard could indefinitely prevent states from enforcing the sentences of their courts.

By the terms of the Court's Eighth Amendment precedent, the challenge to the lethal injection cocktail should fail: At the very least, it is difficult to argue that a method used by 35 states (of the 36 that have the death penalty) fails the Roper test for a national consensus in favor of a practice. However, four justices (Stevens, Breyer, Ginsburg, and Souter) voted in 2005 to grant a stay of execution in a case concerning the same cocktail at issue in Baze. If they are joined by Kennedy, whose willingness to read heightened restrictions on capital punishment into the Eighth Amendment made him the deciding vote in Roper--and for whom the weight of international sentiment against all use of the death penalty could be relevant--the challenge will succeed.

As for Kennedy v. Louisiana, it is the case of Patrick Kennedy, sentenced to death for raping his eight-year-old stepdaughter (a crime for which he attempted to frame neighborhood youths) under a Louisiana statute making aggravated rape of children a capital crime. In his petition, the defendant relies on Supreme Court precedent holding that capital punishment for rape was unconstitutionally cruel and unusual because the finality of the sentence was disproportionate to the harm done to the victim, which fell short of death. The Court must now decide whether the unique susceptibility of a child to "negative influences"--which in Roper it deemed sufficient to spare a 17-year-old murderer--increases the harm done to an eight-year-old rape victim sufficiently to justify capital punishment for her protection.

Structurally, this case resembles Roper, insofar as it considers whether the nature of a particular crime can ever warrant capital punishment. As only six states make rape a capital crime, the defendant will argue that there is no national consensus in favor of the death penalty for rape (though a number of states, such as Colorado, have child-rape bills moving through their legislatures in reaction to the Kennedy case).

And should the Roper majority reconstitute itself, the similarities between the two cases would present an opportunity for yet another exploration of foreign opinions on the subject. According to Amnesty International, fewer than half of the nations with a death penalty on the books allow it for child rape. In its petition to the Court, the defense did not cite international law (though it did urge the Court to "pause" before condoning the execution of child rapists, as the practice, it argued, is "heavily tinged with the scourge of racism").

Should the Court strike down the Louisiana statute, the repercussions for criminal justice could go far beyond the realm of rape, depending on how broadly the decision is couched. As Louisiana argues in its brief, 15 out of 38 states and the federal government authorize capital punishment for crimes other than murder, including treason, espionage, aircraft piracy, and aggravated kidnapping. If the Court holds against the state on the grounds that death is always "grossly out of proportion" for a crime not resulting in death, one of the federal government's strongest defenses against double agents could be jeopardized.

Finally, largely neglected in recent death penalty jurisprudence is the spate of new research showing that capital punishment works. A 2003 study by Emory economics professor Hashem Dezhbakhsh, for example, projects that each execution prevents, on average, 18 murders; this is only the best known of a growing body of evidence which suggests that the death penalty has a significant deterrent effect. In the formless world of Eighth Amendment balancing tests, such evidence should weigh heavily in support of capital punishment, insofar as it suggests a greater contribution to the "acceptable goals of punishment" than previously supposed.

The justices now have two new opportunities to consider the compelling evidence that the death penalty has a significant deterrent effect. Whether the Court will be as ready to use such nontextual considerations to protect victims as to protect their attackers remains to be seen.

Erin Sheley is a writer and attorney living in Washington, D.C.