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Dead Men Walking

Why Kennedy v. Louisiana could spell the beginning of the end of the death penalty.

12:00 AM, Jul 2, 2008 • By ERIN SHELEY
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THERE IS MUCH TO find loathsome about Justice Kennedy's opinion in Kennedy v. Louisiana, in which the Supreme Court ruled that the Louisiana statute allowing capital punishment for child rapists is unconstitutional. Most morally disgusting is the Court's conclusory recognition of "an incongruity between the crime of child rape and the harshness of the death penalty," which in this case would have been imposed on a man whose assault on his eight-year-old stepdaughter tore her internal organs away from the inside of her body, and who attempted to implicate innocent neighborhood children as perpetrators. Most intellectually disgusting, perhaps, is the Court's attempt to establish, through a survey of legislation and state court decisions, a developing "national consensus" against imposition of the death penalty in these cases. But as Justice Alito noted in his dissent, five other states have recently enacted such laws and in the months following the Court's grant of certiorari in Kennedy, similar bills stalled in the legislatures of five other states due largely to stated concerns for the outcome of Kennedy itself. Most morbidly ironic is the Court's statement that its conclusions flowed in part from a "respect for the dignity of the person." While we are right to be outraged at these aspects of Kennedy as they relate to the crime of child rape specifically, the case is likely most significant in what it suggests about the future of the death penalty. In attempting to establish the disproportion between child rape and punishment by death, Justice Kennedy announced, in dicta, a largely new constitutional principle: "the necessity to constrain the use of the death penalty."

At first glance, Kennedy's reasoning seems in keeping with the existing line of cases construing the Eighth Amendment's prohibition against cruel and unusual punishment which, since 1910, has turned on whether a punishment is "graduated and proportioned" to the crime. In the 1958 case Trop v. Dulles, the Court held that this determination must take into account "the evolving standards of decency that mark the progress of a maturing society." With such a subjective constitutional standard, it is no surprise that most death penalty cases have been decided through free-form balancing tests. In 2002, for example, the Court held in Atkins v. Virginia that the death penalty could not apply to mentally retarded individuals, due to the fact that their decreased moral culpability obviated the penal goals of retribution and deterrence. Most recently in Roper v. Simmons (also authored by Justice Kennedy), the Court held that a juvenile under 18 could not be constitutionally sentenced to death, even for the most vicious and premeditated of murders, due to a "lack of maturity and underdeveloped sense of responsibility," a vulnerability "to negative influences including peer pressure," and possession of a character less "well formed" than that of an adult. Setting aside the speciousness of the reasoning in Roper, the opinion remained couched in terms of moral proportionality, emphasizing the language from Atkins, which acknowledged that for "a narrow category of the most serious crimes" the perpetrators' "extreme culpability" makes them "the most deserving of execution."

In Kennedy, Justice Kennedy deftly extends this limiting principle by divorcing the need to narrow the penalty almost entirely from the culpability of the defendant. This move is most clear in his shocking conclusion that the fact that child rape occurs much more often than murder, and that "there are hundreds, or more, of these convictions just in jurisdictions that permit capital punishment," cuts against allowing the death penalty. In other words, because there are so many victims, their rapists should be better protected from extreme punishment--not because they are less culpable than murderers, but because there are so many of them. "Constraining" the death penalty has become an end in and of itself.