The Supreme Court Breakfast Table

A Skeptical New Mood About the Death Penalty?
An email conversation about the news of the day.
June 25 2008 9:07 PM

The Supreme Court Breakfast Table

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Dahlia, Jack, and Walter

Today's death-penalty decision is interesting on many levels.

Beyond the significance of the holding in the child-rapist case itself—that the state's taking of a life requires a crime involving the loss of a life—I wonder if there are also hints in the decision that other members of the five-justice majority have any inclination to pick up on Justice Stevens' call earlier this term to re-examine the death penalty itself. Justice Kennedy's majority opinion includes striking comments indicating possible skepticism about the entirety of capital punishment jurisprudence. In a remarkable statement, he says that the court's extensive body of death-penalty case law "is still in search of a unifying principle." That's a pretty bold statement about the whole project. And consider this statement by Kennedy today: "When the law punishes by death, it risks its own sudden descent into brutality, transgressing the constitutional commitment to decency and restraint."

In Stevens'  remarkable concurrence in the lethal-injection case earlier this term, he explained that, after more than 30 years applying the death penalty (and co-authoring the decision that restored it in 1976), he now finds the death penalty unconstitutional. Stevens pointedly argued that "[t]he time for a dispassionate, impartial consideration of the enormous costs that death penalty litigation imposes on our society with the benefits that it produces has surely arrived." Does Kennedy's opinion contain subtle signals that others on the court may be inclined to have just such a discussion?

I recognize that this may well be over-reading the faint tea leaves. There certainly is evidence for a different view—that the court will continue applying the death penalty but limiting it to narrow circumstances. Kennedy's opinion also explains, for example, that, precisely because of its unique risks and dangers, the death penalty must be restricted in its application—and, of course, restricted is very different from prohibited:

The rule of evolving standards of decency with specific marks on the way to full progress and mature judgment means that resort to the penalty must be reserved for the worst of crimes and limited in its instances of application. In most cases ["most"—not all], justice is not better served by terminating the life of the perpetrator rather than confining him and preserving the possibility that he and the system will find ways to allow him to understand the enormity of his offense.

Still, as even that passage suggests, it seems to me that there may be something notably new and skeptical in the court's tone on the death penalty in general.

Dahlia, I think you're right that Justice Kennedy's emphasis on the difficulty of the child victim as a witness is a bit jarring in the opinion—most notably, because nothing actually turns on it. He ends up concluding, for the court, that the death penalty must be reserved "in cases of crimes against individuals, for crimes that take the life of the victim." The decision does not, in fact, rest on anything particular to child victims or the difficulties they face. I suppose that his discussion could be viewed as part of the response to the argument that child rape is uniquely different from other nondeath crimes and more deserving of capital punishment. But the simplicity of the court's core principle—that, at least in "crimes against individuals," the state cannot take a life if there has not been a loss of life—does not depend on the many difficulties of child-witness testimony.

I also want to note one new bizarre consequence of the court's nose-counting of jurisdictions in establishing trends for "evolving standards of decency." The majority labored to argue that it previously was not clear under Supreme Court jurisprudence that the death penalty was unconstitutional for child rape. In most contexts, the majority would be explaining that today's decision fits comfortably within existing precedents—the court has not allowed a death penalty for a crime that did not involve death for decades, and it has, in the meantime, struck down capital sentences when the offense did not involve death. But if the court had gone with that conventional approach, it would have had difficulty with its argument about the scarcity of jurisdictions imposing the death penalty for child rape. As various states argued to the court, many states probably have viewed the death penalty for nondeath cases as off-limits. Understanding what other states and the federal government do with the same offense, or the same type of offender, clearly is relevant to the court's inquiry. But, as this new wrinkle illustrates, the court may well be making far too much of it (your Crazyville point, Dahlia), particularly because, in the end, the court relies on its own judgment of proportionality.

Best,
Cliff

Cliff Sloan, the author of The Great Decision: Jefferson, Adams, Marshall, and the Battle for the Supreme Court, is a partner at Skadden, Arps, Slate, Meagher, & Flom and a former publisher of Slate. He has argued five Supreme Court cases.