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Court in the Act
16 July, 2008  
A painful death for the death penalty?

The death penalty has been found by the US Supreme Court, with a little help from the swinging justice, to be an excessive sentence for child rape. A consideration of the constitutionality of the death penalty in murder cases may not be far away. Stephen Keim SC examines the way the law is evolving


imageFrom Stephen Keim (pic)

On June 25, the same day that it held gun ownership was a private and not just a communal right (for militia purposes), the United States Supreme Court, by a 5-4 majority, held that it was unconstitutional to sentence a person to death for the offence of rape in any form.

Kennedy v Louisiana, involving non-consensual rape by the petitioner with his then eight year old step-daughter, added to the jurisprudence established in Coker v Georgia, which had held that it was an excessive punishment, in breach of the Eighth Amendment, to sentence a person to death for rape, in that case, of an adult.

The decision adds to a number of previous decisions limiting the availability of the death penalty.

In Roper v Simmonds, it was held that it was unconstitutional to sentence a person who was a minor at the time of the offence to death.

In the slightly earlier case of Atkins v Virginia it was held that the Eighth Amendment prevented a mentally retarded person who had committed murder from being sentenced to death.

imageIn Enmund v Florida the death penalty was held not to be available for vicarious felony murder, that is, where the person’s liability for the offence was based on participation in a robbery, but where someone else has fired the fatal shot.

The opinion of the court in Kennedy v Louisiana was delivered by Justice Anthony Kennedy (pic), the nearly 72-year old judge appointed in 1988 by Ronald Reagan.

The opinion was joined in by Justices John Paul Stevens, 88, (a George H.W. Bush appointment); David Souter, 68, (also appointed during Bush the Elder’s term); Ruth Bader Ginsburg, 75, (a Bill Clinton appointee); and Stephen Breyer, 69, (Bill Clinton).

Justice Kennedy was part of the 5-4 majority in Heller. His views are seen as critical to the outcome of cases that tend to split the court along liberal/conservative lines.

The dissenting opinion in Kennedy v Louisiana was written by Justice Samuel Alito.

Alito is the most recent appointment to the court, having been nominated by President George W. Bush in 2005 and confirmed by the senate in early 2006. Alito was nominated after Harriet Miers withdrew from contention.

He was joined in dissent by traditional supporters of the constitutionality of the death penalty – Chief Justice John Glover Roberts, 43, (appointed in 2005); Clarence Thomas (a George Bush snr. nominee, whose lengthy confirmation hearings involved allegations of sexual harassment by Anita Hill and others) and Antonin Scalia ,72, (another Reagan era appointment).

The decision holds the line against any extension of capital punishment in the United States.

However, it provides little guidance for any reconsideration of whether capital punishment should be held unconstitutional in all cases of murder.

In the recent case of Baze v Rees, which considered the constitutionality of the present system of lethal injection using three different chemical compounds, both Stevens and Alito indicated a desire that the court reconsider the more fundamental question as to whether execution for murder is in breach of the Eighth Amendment.

Alito said in Baze:

“The issue presented in this case – the constitutionality of the method of execution of execution – should be kept separate from the controversial issue of the death penalty itself. If the court wishes to reexamine the latter issue, it should do so directly, as Justice Stevens now suggests.”

For those whose views on capital punishment are fundamental and involve no compromise, the jurisprudential discussions as to whether one case falls on one side or the other of the line drawn by the Eighth Amendment, sometimes, appear contrived. Kennedy v Louisiana is no exception.

imageThe primary debate between Kennedy and Alito (pictured with sponsor) revolved around the question whether there was an identifiable consensus against use of the death penalty in child rape cases, in particular, and in cases not involving the death of the victim, more generally.

This resolved itself into a debate as to whether the court’s 1977 decision in the adult rape case of Coker had been perceived by state legislatures and the public as extending to a ban on the use of capital punishment in all forms of rape, including child rape.

Justice Kennedy thought that the ratio in Coker had been clear while Justice Alito thought that many states may have been scared off from trying to impose the death penalty in child rape cases by their perception of the decision in Coker.

Kennedy did not restrict himself to a consideration of community values. His opinion concluded that, exercising the court’s own judgment and utilising its precedents, capital punishment was an excessive penalty for an offence of child rape where the death of the victim neither occurred nor was intended.

Two utilitarian arguments weighed heavily against the imposition of the death penalty in these circumstances.

Such a penalty for child rape is be more likely to cause rapists to murder their victims since this might make detection more difficult and, in any event, the most serious penalty is already available for the offence already committed.

The second argument involves the undesirability of forcing a child victim to make decisions about whether the prosecution should seek the death penalty for the offence against that victim and to give evidence in circumstances where the child’s evidence may result in the perpetrator’s execution.

The dissenting opinion of Alito brushed these arguments aside, primarily, by saying that they were matters for the relevant legislature which imposed the penalty and not matters going to the constitutionality of the punishment.

It is very likely that the US Supreme Court will continue to consider applications concerning the death penalty.

The direction of this jurisprudence will largely be determined by the nature of the future appointments to the court which, in turn, adds to the importance of the result of this year’s presidential election.