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The Eighth Amendment and Sexual Assault

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Today’s decision in Kennedy v. Louisiana is a fairly typical Eighth Amendment case. The relevant textual language — “nor cruel and unusual punishments inflicted” — can evidently accommodate multiple outcomes in any case sufficiently interesting to get to the Supreme Court, and this case is no exception. The Court’s four more liberal members and the moderate conservative found that the Eight Amendment categorically bars the death penalty for cases of sexual assault “where the crime did not result, and was not intended to result, in death of the victim.” The Court’s four doctrinaire conservatives dissented.

One interesting aspect of Alito’s opinion, however, is the particular way in which he made his argument. One could imagine an argument to the effect that the text of the Eighth Amendment as originally understood did not prohibit the death penalty for the rape of a child. This would be true, but given what kinds of punishments would be permitted by an originalist analysis would prove too much, and indeed even Scalia has said that cruel and unusual punishment is an area where he is a “faint-hearted” originalist who would not actually hold flogging for minor property theft to be constitutional. Instead, Alito takes on Kennedy’s standard analysis of whether there is a national consensus against the death penalty for the sexual assault of children. Here, Kennedy’s case is pretty strong, given that the few states with such statutes are clear outliers (this is roughly the same number of states that didn’t provide lawyers for criminal defendants at the time of Gideon). Alito attempts to explain this away:

…dicta in this Court’s decision in Coker v. Georgia, 433 U. S. 584 (1977) , has stunted legislative consideration of the question whether the death penalty for the targeted offense of raping a young child is consistent with prevailing standards of decency. The Coker dicta gave state legislators and others good reason to fear that any law permitting the imposition of the death penalty for this crime would meet precisely the fate that has now befallen the Louisiana statute that is currently before us, and this threat strongly discouraged state legislators—regardless of their own values and those of their constituents—from supporting the enactment of such legislation.


The claim that legislators would have been prevented from pursuing laws they strongly favored because of mere dicta in an opinion is, however, highly implausible. In the wake of Furman, for example, some people (including the Chief Justice) believed that the death penalty was effectively abolished although only 2 of the 5 majority justices held the death penalty categorically unconstitutional — but this didn’t stop a majority of states from quickly passing new death penalty statutes despite little knowledge of whether such laws would be upheld. In the case of abortion, legislators have passed laws that were clearly unconstitutional under contemporary doctrine, such as the federal Partial Birth Abortion Ban Act, the states that have passed abortion bans after Roe, and the states that continued to pass abortion restrictions after Akron. Alito’s claim that mere dicta intimidated states into not passing legislation they otherwise preferred and that Supreme Court precedent did not explicitly prohibit is highly implausible, and (if one accepts the standard being applied) Kennedy’s assessment is much more credible. If the Court’s opinion in Coker ran counter to strong sentiment, we would have expected a significant number of legislatures to immediately test the boundaries of the Court’s opinion; needless to say, this didn’t happen.

Alito also makes an argument that there is no reason to assume that murderers achieve a unique level of moral depravity, which on its face is more reasonable:

Consider the following two cases. In the first, a defendant robs a convenience store and watches as his accomplice shoots the store owner. The defendant acts recklessly, but was not the triggerman and did not intend the killing. In the second case, a previously convicted child rapist kidnaps, repeatedly rapes, and tortures multiple child victims. Is it clear that the first defendant is more morally depraved than the second?

Fair enough as far as it goes. However, there’s another way of approaching this: to question whether the death penalty should be applicable in cases of felony murder. A categorical prohibition on the death penalty for people who did not intend to cause the death (or their personal actions could not foreseeably have caused) of another person seems the better way of resolving the conflict to me.

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