Tuesday, July 1, 2008

Kennedy: Some Speculations

HE MISSED ONE - Apparently, the Uniform Code of Criminal Justice, per an act of Congress, had recently added child rape as a death penalty offense. Kennedy failed to mention this provision in his survey of child rape laws (as did Alito's opinion , and all of the 10 briefs filed in the case). Not addressed in this article: does the Uniform Code require aggravating circumstances for child rape, or is it like the Louisiana law?

THE "WHYS" Why did Justice Kennedy decide Kennedy v. Louisiana the way he did? As we've pointed out in our prior posts, there was a glaringly obvious way to reach the same result in the case - he could have followed Coker v. Georgia, which (by any reasonable reading) held the death penalty unconstitutional for any non-killing offense. Instead, Kennedy had to deny that Coker said this, as part of his preferred (primary) argument that a national consensus had developed against the death penalty for child rape.

Why did Kennedy write the opinion this way? We don't know. We have a theory - but it's too speculative to share right now. Perhaps we'll address it later. For now, we'll answer another "why" question that we're more sure about.

Why did Byron White think the death penalty for non-homicide crimes was unconstitutional? He says (seven times!) in his opinion that crimes such as rape are not death penalty OK unless they cause a death - but why exactly is this? Couldn't there be a death penalty for both offenses, even if one is worse than the other?

White doesn't spell this out in his opinion in so many words - but we have an educated guess.

The two big death penalty cases that preceded Coker were Furman v. Georgia and Gregg v. Georgia. Furman briefly ended capital punishment in this country, Gregg brought it back. White agreed with the result in both cases.

Furman is famous because all nine judges on the court wrote separate opinions. It was a closely decided (5-4) case. White was a surprise vote in the majority (Powell, the most common swing vote, and Harry Blackmun, who would eventually decide the death penalty was unconstitutional, both dissented).

White's view was not that the death penalty was inherently unfair, or excessive, or unreasonable. Here's why he struck it down:
That conclusion, as I have said, is that the death penalty is exacted with great
infrequency even for the most atrocious crimes and that there is no meaningful basis for distinguishing the few cases in which it is imposed from the many cases in which it is not. The short of it is that the policy of vesting sentencing authority primarily in juries - a decision largely motivated by the desire to mitigate the harshness of the law and to bring community judgment to bear on the sentence as well as guilt or innocence - has so effectively achieved its aims that capital punishment within the confines of the statutes now before us has for all practical purposes run its course.

White was concerned about the general use of the death penalty in society. Its use was arbitrary. Because it was arbitrary, it could serve no useful purpose.

After Furman, states did not give up on the death penalty. Instead, they passed new laws designed to address White's arbitrariness concern. Some states passed laws that set up a separate sentencing hearing, at which juries would be required to consider certain factors in making their death penalty decision - but they would ultimtately have the power not to impose the penalty. Others made the death penalty mandatory for certain convictions.

The Supreme Court, in Gregg and an accompanying case called Woodson, eventually decided that the first type of law was OK, but the second did not. White, however, thought that both types of systems were OK. It didn't matter to him how many people were executed, or that a jury was given no control over the punishment - all that mattered was the death penalty, under either system was not arbitrary.

So how does this relate to Coker? Consider White's comment at the end of the opinion:

We note finally that in Georgia a person commits murder when he unlawfully and
with malice aforethought, either express or implied, causes the death of another
human being. He also commits that crime when in the commission of a felony he
causes the death of another human being, irrespective of malice. But even where
the killing is deliberate, it is not punishable by death absent proof of aggravating circumstances.
It is difficult to accept the notion, and we do not, that the rapist, with or without aggravating circumstances, should be punished more heavily than the deliberate killer as long as the rapist does not himself take the life of his victim.

After Gregg and Woodson, murderers may receive the death penalty - but they also may not. If the death penalty was upheld for rape, this means that some persons who committed rape would receive the death penalty, but some would not. Thus, in any given state, some people who committed rape would be inevitably be executed, while other persons who committed murder (inherently a more serious crime, in White's view) would inevitably not be.

White seems to be most concerned about the arbitrariness of this result. Under his preferred system, where the death penalty could be mandatory for certain crimes, this would not be a problem. In White's view, if every convicted murderercould be executed, there wouldn't be anything wrong with offing a few rapists as well. But Gregg and Woodson prohibit mandatory death penalties.

Thus, the solution in Coker - banning the death penalty for non-homicide crimes - is a compromise solution that reflects a fairly expansive view of the death penalty.

Is this why Kennedy did not want to adopt Coker's reasoning? Did the majority intend to make a broader statement about the death penalty? Again, we simply don't know. The decision, however, provides a lot of ammunition for arguments about the death penalty in other contexts.

For example, one of the many issues that Kennedy raised with the death penalty for child rape is the possibility of erroneous conviction. Justice Kennedy notes that many child rape prosecutions are based mostly or entirely on the testimony of a young child, and expressed concern about the reliability of such testimony (in our experience as a public defender, such concerns are well-founded in some cases). Should this concern limit the death penalty in other cases that may be based on questionable evidence - informants, for example?

NEXT: We discuss Giles v. California, as a warm-up for Heller.