On 25 June, 2008, the Supreme Court held, five to four, that child rape, no matter how brutal, vicious and damaging to the child, cannot be punished by death unless it results in the death of the child, and was intended to do so. Note the use of the conjunctive, rather than the disjunctive. If the rape was intended to, but did not result in, death of the child, the death penalty is disproportionate. The primary basis cited by the Court is that societal views have changed to the point that the death penalty is viewed as unacceptable by "the people," and therefore violative of the Eighth Amendment to the U.S. Constitution.
Once again, the Supreme Court has taken on the mantle of Supreme Legislator. Regardless of one's personal views on the death penalty, or its appropriateness in various circumstances, the Supreme Court grossly overstepped its proper bounds. And, once again, the Supreme Court made a pig's breakfast of the Law and, indeed, of its own rights and duties under the law.
Mr. Justice Kennedy, in Kennedy vs. Louisiana (no relation, presumably) wrote the opinion in which Justices Stevens, Souter, Ginsburg, and Breyer joined. Mr. Justice Alito wrote a dissenting opinion, in which Mr. Chief Justice Roberts, and Justices Scalia and Thomas joined.
The Majority Opinion observes,
Petitioner’s crime was one that cannot be recounted in these pages in a way sufficient to capture in full the hurt and horror inflicted on his victim or to convey the revulsion society, and the jury that represents it experienced.
The Court continued,
An expert in pediatric forensic medicine testified that the injuries inflicted upon [the eight year old stepdaughter of the rapist] were the most severe he had seen from a sexual assault in his four years of practice. A laceration to the left wall of the vagina had separated her cervix from the back of her vagina, causing her rectum to protrude into the vaginal structure. Her entire perineum was torn from the posterior fourchette to the anus. The injuries required emergency surgery.
The Court nevertheless concluded that the rape did not rise (or, perhaps, fall) to the level of intentional murder, and that for any crime against a person, only murder in the first degree warrants the death penalty. The Court expressly did not opine on crimes not against a person:
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.
In passing, the Court noted
in Tison v. Arizona, 481 U. S. 137 (1987), the Court allowed the defendants’ death sentences to stand where they did not themselves kill the victims but their involvement in the events leading up to the murders was active, recklessly indifferent, and substantial.
The Court opined that it makes no difference whether the crime committed on the rapist's eight year old stepdaughter was of the sort which the Founding Fathers contemplated in 1791, when the Eighth Amendment was adopted, but that "the evolving standards of decency that mark the progress of a maturing society" control. The Court then set itself up to decide what those "evolving standards of decency" are. This is the crux of the Court's decision, and it is also the crux of the problem with the decision.
The Court relied heavily upon Coker v. Georgia , 433 U. S. 584 (1977), which held that the death penalty is disproportionate in the rape of an adult, regardless of the circumstances, provided only that death is neither intended nor results. The Court noted that subsequent to this stellar decision, few states had passed statutes permitting imposition of the death penalty even in the case of the most egregious of child rapes. It acknowledged that the Coker decision may possibly have impacted on this failure to pass legislation permitting the death penalty in such cases, but rejected the notion that the Court's own ambiguity (perish the thought — the Court is incapable of ambiguity) may have contributed to misunderstandings of the meaning of Coker,. It concluded that there is a national consensus against capital punishment for the crime of child rape.
There are a number of make-weights in the Court's decision, as quite properly pointed out in Mr. Justice Alito's dissent. For example, the Court points out how terrible it must be for a small child to testify in a rape trial, forgetting that it must be no less terrible regardless of whether the death penalty is an option. The Court also points out that were child rape to continue to be a capital offense, there would be too many capital cases:
The crime of child rape, considering its reported incidents, occurs more often than first-degree murder. Approximately 5,702 incidents of vaginal, anal, or oral rape of a child under the age of 12 were reported nationwide in 2005; this is almost twice the total incidents of intentional murder for victims of all ages (3,405) reported during the same period.
Not only that, but child rape is so horrific that juries might lose their way and act irrationally. The Court continued,
[i]n this context, which involves a crime that in many cases will overwhelm a decent person’s judgment, we have no confidence that the imposition of the death penalty would not be so arbitrary as to be “freakis[h]” . . . We cannot sanction this result when the harm to the victim, though grave, cannot be quantified in the same way as death of the victim.
The Court also opined that some small children lie (there is no suggestion that that happened in Kennedy or that the jury's decision on the merits was incorrect or even dubious). And, of course, "a State that punishes child rape by death may remove a strong incentive for the rapist not to kill the victim."
In the dissent, which anyone interested in understanding the Court's decision should read before making up his mind, Mr. Justice Alito summarized the Court's decision as follows:
The Court today holds that the Eighth Amendment categorically prohibits the imposition of the death penalty for the crime of raping a child. This is so, according to the Court, no matter how young the child, no matter how many times the child is raped, no matter how many children the perpetrator rapes, no matter how sadistic the crime, no matter how much physical or psychological trauma is inflicted, and no matter how heinous the perpetrator’s prior criminal record may be. The Court provides two reasons for this sweeping conclusion: First, the Court claims to have identified “a national consensus” that the death penalty is never acceptable for the rape of a child; second, the Court concludes, based on its “independent judgment,” that imposing the death penalty for child rape is inconsistent with “‘the evolving standards of decency that mark the progress of a maturing society.’”
This is a very fair summary of what the Court did.
One point not raised, even in the dissenting opinion, is that in a civilized society lynchings are almost universally seen as bad. One of the reasons for this is a belief that the legal system will administer just punishment to those found guilty. By shielding those properly convicted of the most heinous crimes from the death penalty, the Supreme Court has undermined this belief. In doing so, it may have encouraged otherwise decent people to take the law into their own hands. Those who do so are unlikely to provide due process, and innocent people incorrectly believed to have committed heinous crimes may well suffer.
The death penalty may or may not be justifiable in any circumstances. I happen to think that there are circumstances in which it is justified, but what I think about this does not matter; I am neither a legislator, a judge, nor a part of the law enforcement apparatus. What does matter, however, and what is most important to me because of its long term ramifications, is whether the Supreme Court here, as in other recent cases, grossly overstepped its bounds and substituted its perceptions of what "the people" want for the perceptions of those charged with answering that question. The Kennedy decision was a very bad one, and it will come back to haunt not only the Court but the country for years to come.
What can "the people" who are concerned about the Kennedy do about it? Not a damn thing.Powered by Sidelines