Digging In To Kennedy v. Louisiana

Okay, so I just can't quit you.

Reading through Justice Kennedy's opinion, I get the feeling that trying to describe this ruling to anyone else would be an exercise in "I am not making this up. Srsly." Let's pretend for a minute that we accepted the ridiculous idea that the Eighth Amendment rests on a combination of "evolving standards of decency" and "the Court's own judgment." Kennedy himself fudges the first part.

For example, he writes in page 22:

Aside from pending legislation [five additional states are considering capital punishment for child rapists], it is true that in the last 13 years there has been change towards making child rape a capital offense. This is evidenced by six new death penalty statutes, three enacted in the last two years. But this showing is not as significant as the data in Atkins, where 18 States between 1986 and 2001 had enacted legislation prohibiting the execution of mentally retarded persons.

What's so shameful is that Kennedy doesn't even bother trying to hide or address the inconsistency. Suddenly, he equates child rape to mental retardation. He makes no comment on the differences between the two, like for example, that one is a crime and the other a condition. It seems that any legislative movement limiting the death penalty in specific circumstances can be used to show a "national consensus" against the death penalty in general.

As I was reading through the opinion, I was on the lookout for that most infamous of execution-worthy crimes: treason. Like child rape, treason need not result in death. Under Kennedy's reasoning, the death penalty would therefore be an inappropriate punishment. For reasons passing understanding and with no explanation, Kennedy simply exempts "offenses against the State" from his reasoning.

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.

Why? He doesn't say, but it's in section where he describes "the Court's own judgment" so it's not like citizens and legislatures need to know how and why the Court comes to a decision, right?

And that's one of the most frustrating things about Eighth Amendment jurisprudence. The whole point of having a Constitution and precedential judgments is so that individuals and legislatures can predict with some success whether their actions will run afoul of the laws or Constitution. But when it comes to the Court's holdings on the Eighth Amendment, that goes right out the window. There's just no way to predict in advance "the Court's own judgment."

Well, that's not strictly true. We know how Kennedy, Souter, Stevens, Ginsberg, and Breyer are going to rule on death penalty cases. The conservative justices are a little harder to predict, if only because their holding is more likely to be based on the specific facts of a case. But how death penalty jurisprudence will change from Court to Court is a crapshoot. Maybe the Senate Judiciary committee should spend more time asking nominees about the Eighth Amendment and less time applying litmus tests for abortion.

posted by Gabriel Malor at 11:54 AM

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