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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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  • phil

    You can blame Souter for the felony murder part. That was back when he looked for a moment like a conservative justice. (Same with Stevens in Gregg.)

  • Ginger Yellow

    “n the case of abortion, legislators have passed laws that were clearly unconstitutional under contemporary doctrine”
    Not just abortion – look at all the video game censorship laws that are passed and then immediately overturned in court. Legislators constantly pass laws that won’t pass constitutional muster if they think they can score points with voters for “trying”. That said, I don’t agree with the majority in this instance. As I say on ObWi, if you’re going to accept the constitutionality of capital punishment as a regular part of the criminal justice system, it’s pretty hard not to allow it in this instance.

  • It seems to me that the most persuasive argument against child rape capital statutes is that because child rape is a strict liability offense the statute can be applied in a manner that is inconsistent with the defendant’s actual mens rea. The potential discrepancy between the state of mind of the offender and the potential punishment raises constitutional concerns. Approaching the statute in that manner would invite states to write statutes that address the actual level of depravity of the accused. For some reason that’s not how Kennedy wrote it– it looks to me as though the majority dislike capital punishment and are carving away at it in a manner that is similar to the way reproductive rights are being narrowed. We are not likely to see an Eighth Amendment challenge succeed in an espionage case– Kennedy is careful to say that he is not considering whether capitol punishment is constitution in offenses like treason or espionage– but for anything short of homicide the death penalty is probably off the books.

  • nolo

    Other persuasive arguments against child rape capital statutes are (a) the fact that a capital sentence for the rape itself creates a perverse incentive on the part of the rapist to kill the victim-witness and (b) the not-insubstantial risk of false convictions for child rape.

  • TomO

    I think you are concluding way to much from your premises. Yes legislatures often pass legislation that they know damn well to be Unconstitutional under current precedent to score points, but that is only proof that legislatures don’t always bow to the Supreme Court. In other circumstances legislatures might (and I think probably do) generally act in light of Supreme Court rationales (and the Croker dicta was pretty strong — leading at least the florida court to (then mistakenly) invalidate the death penalty for child rape.
    That most states chose not to actively thumb their noses at the Croker dicta is only good evidence that most people are not particularly strongly in favor of the death penalty for child rape. But, as Alito points out, you don’t have to establish a consensus in favor of the practice. The statute is presumptively Constitutional. Its the defendants “heavy burden” to show that there is a national consensus that does not merely not favor the practice but finds it cruel and unusual. I don’t think that standard was met.

  • wengler

    I think this line of argument only holds if you find execution by the state to also be “cruel and unusual” punishment. Though the judiciary is right not to cede its role in determining what criminal acts meet the capital punishment standard(I think if you executing people who steal cars people would have a real problem), it is really splitting hairs when you make the standard of execution to be the death of the victim.
    I am arguing this way because the prosecution of death penalty cases is so skewed to those who are poor and minority that it effectively makes a mockery of justice for the state to kill people-actually kill them- based on their status at the time of the crime. Therefore any finding that doesn’t address the entire constitutionality of the death penalty for anything other than it is constitutionally proscribed, is weak and refers only to a consensus standard that could be broadly interpreted in other cases in ways I would not be comfortable with.

  • Alex

    I don’t think the argument is that the victim’s death demands execution. It is that only extremely depraved acts which also involve the death of a victim qualify for the death penalty. You don’t get a bright line test for when you should execute someone but you do get one to tell you when you should not.
    Another note that one of the NPR anchors dropped was the possibility that the death penalty being active in sexual abuse cases may decrease the likelihood of victim/witnesses coming forward, as they are likely family members who would hesitate to testify if doing so could mean execution.

  • Joe

    I’m not sure how much it matters, but I’m with the comment the noted the strength of the “mere dicta” here.
    I surely took Coker to mean that rape was not constitutionally worthy of the death penalty. The first felony murder case after Coker emphasized the non-murder aspect. BTW, Tison v. Arizona (5-4?) that allowed some felony murder executions was decided before Souter came to the SC.
    The fact an “adult” was involved was a factor (though she was 16), but “no death penalty except for murder” was the clear message. Anyway, even if the result was fairly straightfwd, Kennedy’s opinion — including the first section — was rather striking.
    Catch Alito quoting Rehnquist’s dissent in Atkins to determine what message the “Court” sent? Shades of his Casey opinion in the 3rd Circuit?

  • As if to prove the point …
    Unbowed, politicians vow to execute child rapists
    “Unbowed”! Like William Ernest Henley…

  • Hm, I would have expected that Scalia’s genius would have been to explain why neither drawing nor quartering is either cruel or unusual. I’ve misjudged the guy.

  • However, there’s another way of approaching this:
    Leave it to the legislatures, instead of letting judges substitute their own sense for how the public should feel if it were only decent and enlightened like the judge?
    There was a lot of outrage spilled the other day because, in Boumediene, Scalia relied upon Pentagon statements which some argue have since been refuted. So how about Kennedy simply inventing a “consensus” against the death penalty for child rape that simply doesn’t exist? (See, e.g., this post on Volokh.)
    As for your point about legislatures enacting abortion laws in the face of Roe, there is a huge anti-abortion lobby out there. There’s no organized death-penalty-for-child-rape lobby. So it’s hardly surprising that legislatures would be more likely to challenge Roe than Coker.

  • Leave it to the legislatures, instead of letting judges substitute their own sense for how the public should feel if it were only decent and enlightened like the judge?
    This is reasonable position. I assume you believe that Kelo and Heller were wrongly decided, right? Or are only conservative judges permitted to make policy choices based on ambiguous constitutional provisions?
    It is literally true that there is never a “consensus” on any issue interesting enough to get to the Supreme Court. It is true, though, that states that have capital penalties for rape are extreme outliers, comparable to the ones in Gideon v. Wainwright.

  • Er, I mean you agree that Kelo was correctly decided?

  • Cliffy

    “There’s no organized death-penalty-for-child-rape lobby.”
    Proves too much, David. There’s no big lobby to execute child rapists because there is a consensus among the polity that capital punishment isn’t appropriate for non-homicide crimes.

  • Proves too much, David. There’s no big lobby to execute child rapists because there is a consensus among the polity that capital punishment isn’t appropriate for non-homicide crimes.
    By that logic, we can conclude from the fact that there’s no big lobby for peace with Denmark that there’s a consensus among the polity that we should nuke ’em. (IOW, one can’t conclude merely from the lack of lobbying for X that there’s a consensus that X is a bad idea.)

  • Scott, cute, but no. I didn’t say or imply that judges should never overrule the will of (the elected representatives of) the public. When the laws violate the Constitution, of course judges should do so.
    What I said was that if one is going to set forth a test which depends on what the public thinks, then in applying that test, one should not overrule the public.
    I don’t think — contra some conservatives — that the notion of looking at the eighth amendment through the lens of ‘evolving standards of decency’ is necessarily problematic. But when those “standards” are not actually standards at all, but just the views of the judge, I think the judge is clearly crossing the line.
    What Kennedy does in, well, Kennedy is to utilize not the “basic mores of society,” but the “basic mores of Anthony Kennedy.” And I don’t think that’s a legitimate interpretation of the eighth amendment.

  • I agree with David Nieporent. There’s no big problem with saying that we shouldn’t decide what’s ‘cruel and unusual’ by 18th century standards, because times and mores have changed, but there’s a problem with allowing the Court to be arbiters of those mores. (Although at the same time they *are* judges, not decision robots and should be presumed to have wisdom that is in some way valuable.)

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