Monday, June 30, 2008

Kennedy and Kennedy

There should be some rule against assigning an opinion to a justice with the same name as the petitioner. We fear they may be some confusion in our discussion of Justice Kennedy and Kennedy vs. Louisiana (we have some issues with both).

Just to make things extra confusing, we threw in President Kennedy's name in our last post!

WHERE WE LEFT OFF: Justice White's (controlling) plurality opinion in Coker v. Georgia said that the death penalty for rape was cruel and unusual punishment that violated the 8th amendment. In the crucial part of the opinion, White noted seven separate times that the death penalty was not appropriate for rape unless it involved taking a human life.

One might think that Coker established a rule - the death penalty was not OK unless it concerned a crime where someone was killed. One might think that this rule could lead to an easy conclusion in Kennedy v. Louisiana, which involved the rape of a child (the rape in Coker involved a 16-year-old, and a lot of other awful facts).

One might think these things, unless one were Justice Kennedy. Instead, Kennedy specifically denies that Coker controls the outcome of this case! He holds that Coker only applies to rape of adult women (or at least women 16 years or older. Coker, by the way, did not report the age of the victim, probably because it didn't matter).

Is there a method to this madness?

Well, there is an explanation: Justice Kennedy, for better or worse, is devoted to a death penalty analysis that places great weight on "objective indicia of society's standards, as expressed in legislative enactments and state practice with respect to executions." This was the most important factor in striking down the death penalty in two earlier cases, Roper (involving offenders under the age of 18) and Atkins (mentally retarded offenders).

In practice, what this means is that the court looks at the laws of all the states that have death penalties, and counts how many would allow the death penalty under the circumstances (for example, for offenders under the age of 18). The court also looks for trends - are a lot of states changing their laws because of concerns over the appropriateness of the death circumstances? (In Roper, Kennedy looked at standards in foreign countries as well, which of course was the greatest heresy in the history of the Supreme Court).

Coker actually started this objective test - in the first part of his opinion, White looked at rape statutes in different states, and determined that the Georgia was the only state that allowed the death penalty for the rape of an adult woman (this was the only part of the opinion that placed any importance on the age of the victim. It was not the most important part of the opinion).

On one hand, this type of analysis makes sense: if the 8th amendment bars "cruel unusual" punishment, isn't it important to figure out exactly how unusual a given punishment is? And if everyone else has agreed that the death penalty for a particular crime or person is unnecessary, doesn't that have some bearing on whether it is cruel? On the other hand, this type of analysis has it critics. To Scalia and the High Federalists, it's heresy - the 8th amendment means only what the framers of the constitution thought it meant (short answer: it doesn't prohibit any type of punishment that currently exists in this country). Others might raise more practical concerns. How do you determine whether a "consensus" exists? Also - and particularly important for the Kennedy case - is this consensus business a one-way street? That is, does it just work to limit the death penalty (as it did in Roper and Atkins) or can there be a consensus to expand the use of the death penalty?

We're not interested right now in wading into this debate (but perhaps we'll offer some thoughts later) - so back to Kennedy. A total of six states (mostly in the deep south) authorized the death penalty for child rape in 2008. Louisiana's law was by far the broadest. Essentially, it gave the jury the authority to hand down a death sentence for a first-time offender who raped a child 12 years old or younger, without needing to find any other aggravating factors. Most of the other states required a prior conviction for the death penalty to be an option. Indeed, this requirement makes a death penalty prosecution very unlikely in those states, as even first-time child rape convictions generally lead to huge sentences that keep offenders behind bars for the rest of their lives.

The defendant in Kennedy (who does not appear to have any prior convictions), thus, was facing the death penalty for a crime that would not be a death penalty offense almost anywhere else in the country. So far, it's not looking good for the death penalty. But here's the rub - the government argued that a number of other states had considered and rejected the death penalty because of Coker. In other words, the reason that more states had not allowed the death penalty for child rape was not because they thought it was excessive, but because they thought the Supreme Court had told them couldn't do it.

Justice Kennedy denies that this is the case - he says that the other states reached this decision on their own. But as part of his argument, Kennedy has to deny that Coker told the states anything about child rape! Hence,

Coker's analysis of the Eighth Amendment is susceptible of a reading that would
prohibit making child rape a capital offense. In context, however, Coker's holding was narrower than some of its language read in isolation. The Coker plurality framed the question as whether, "with respect to rape of an adult woman," the death penalty is disproportionate punishment. Id., at 592. And it repeated the phrase "an adult woman" or "an adult female" in discussing the act of rape or the victim of rape eight times in its opinion. See Coker, supra. The distinction between adult and child rape was not merely rhetorical; it was central to the Court's reasoning. The opinion does not speak to the constitutionality of the death penalty for child rape, an issue not then before the Court. In discussing
the legislative background, for example, the Court noted:

As we've stated, this paragraph is simply incompatible with any reasonable reading of Coker. But this statement is necessary for Kennedy to reach his conclusion the way he wants to reach it.

THE "D" WORD: Alito, writing the dissent, has the same problem in reverse. He wants to argue that more states would have imposed the death penalty for rape but for Coker. But if this is the case, shouldn't the Supreme Court follow Coker as well? The Supreme Court, of course, can overrule its decisions, but the doctrine of stare decisis states that the court should generally have a good reason for doing so. A death penalty law passed by six states, mostly in the deep south, and mostly requiring circumstances not present in the Louisiana law, is hardly evidence of a watershed rethinking of the death penalty. Alito dodges this question by using the "D" word:

The implications of the Coker plurality opinion were plain. Justice Powell, who
concurred in the judgment overturning the death sentence in the case at hand,
did not join the plurality opinion because he understood it to draw "a bright
line between murder and all rapes--regardless of the degree of brutality of the
rape or the effect upon the victim." If Justice Powell read Coker that way, it was reasonable for state legislatures to do the same.
Understandably, state courts have frequently read Coker in precisely this way. The Court is correct that state courts have generally understood the limited scope of the holding in Coker, ante, at 18, but lower courts and legislators also take into account--and I presume that this Court wishes them to continue to take into account--the Court's dicta. And that is just what happened in the wake of Coker. Four years after Coker, when Florida's capital child rape statute was challenged, the Florida Supreme Court, while correctly noting that this Court had not held that the Eighth Amendment bars the death penalty for child rape, concluded that "[t]he reasoning of the justices in Coker v. Georgia compels us to hold that a sentence of death is grossly disproportionate and excessive punishment for the crime of sexual assault and is
therefore forbidden by the Eighth Amendment as cruel and unusual punishment."
Numerous other state courts have interpreted the Coker dicta similarly.

Despite what "numerous" states have concluded, Alito tells us that the reasoning in Coker (the reasoning that White repeated seven times) is "dicta" rather than the holding of the case.

We'll admit it - we have no idea what "dicta" is anymore. Back in law school, we were told that "dicta" is superfluous language not needed or used to decide a case. So, for example, if Judge White in deciding the Eighth Amendment issue in Coker, had offered his opinion on the meaning of the reverse commerce clause, or his impressions of the latest Woody Allen film, that would be dicta, and no one else would obligated to follow it. We had never understood dicta to include the reasoning of a case - the explanation and the rules used to reach the result in a particular case. This reasoning, we had thought, was binding - even if it could be used to decide cases with different facts than the one the case was decided upon. As we have stated ad naseum in our last two posts, the "taking of a life requirement" in Coker (repeated seven times!) is not superfluous - it is the basis of the decision.

Over the past few years, the Supreme Court (in our view) has taken an increasingly broad view of dicta. Alito and Roberts, the new judges, are the worst but by no means the only offenders. Under this new view, the reasoning in an old case become dicta if the result could have been reached by some other method. It isn't necessary to even state the "some other method" (Alito doesn't bother to explain how the result in Coker was reached but for the language he insists is dicta). What we used to think was the "result" of a case is now the "holding" (see Alito's quote above). What we used to think was the "holding" is now "dicta"

NEXT: WHY? We'd like to wrap up Kennedy so we can discuss Heller and a few other cases. In our next post, we (offering some speculation) try to answer the "why" questions? Why was White bothered by the death penalty for rape? Why is Kennedy bothered by it? And why is everything "dicta" with Roberts and Alito?

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