Dear Walter, Jack, Cliff:
There is a lot to digest from this morning, but we'll try to tackle today's big decisions in some fashion, starting with congratulations to Walter for the result in Exxon. I wanted to begin with some thoughts about the 5-4 decision in today's other big case, Kennedy v. Louisiana, which struck down the death penalty for child rapists as cruel and unusual under the Eighth Amendment. The interesting things about this opinion are the majority's claims and the dissenters' counterclaims on the ways judicial pronouncements about cruel unusualness act as a one-way ratchet to narrow the death penalty. Eric Posner has already posted on this topic in Slate's legal blog, "Convictions." I wonder what you think about the argument that trends really only get to go in a single direction—away from the death penalty—under current Eighth Amendment jurisprudence?
Before I hop onto the fast train to Crazyville—which is where the counting of trends and countertrends in capital-punishment states invariably leads me—I want to point to one other aspect of Justice Anthony Kennedy's majority opinion, which I have read only once and quickly. Kennedy opens with the sick-making narrative about the crime in question: Then-8-year-old L.H. is so badly raped that she requires emergency surgery. Kennedy initially focuses on L.H.'s conflicting accounts of who raped her, although that has almost nothing to do with the constitutional problem at hand. He describes the child's videotaped interview with a psychologist, which has obviously left an impression on him: The child spoke "haltingly and with long pauses and frequent movement" and expresses "reservations about the questions being asked." He describes how the girl went from blaming some neighborhood boys for the rape, to eventually naming her stepfather as rapist. Then he launches into many pages of analysis of the "evolving standards of decency" and the Eighth Amendment.
But Kennedy returns to the need for the court to exercise its "own judgment" about the "moral grounds" for barring the death penalty for child rapists. And it's here that Kennedy truly channels Kennedy. Although ostensibly making a policy decision about expanding the death penalty to noncapital crimes, he is very focused on "the victim's fright, the sense of betrayal, and the nature of her injuries." Kennedy is bothered by the "long-term commitment" required of child witnesses in capital rape cases and laments that because of the case against her rapist, L.H. was forced to "come to terms with the brutality of her experience," during "the formative years of her adolescence." (She was 13 when she testified against her stepfather at trial.) Further, Kennedy is wary of the ways in which "the death penalty involves the child victim in its enforcement" and complains that this is "forcing a moral choice on the child, who is not of mature age to make that choice."
Kennedy goes on to worry about the reliability of child testimony. And he's afraid that children might be less willing to report rape if their rapist is someone they know and the death penalty were on the table. Finally, he notes that making child rape a capital crime increases the rapist's incentive to kill his victim. Much of this is uncontroversial and was, in fact, urged on the court by one amicus brief filed by sex abuse and social workers and another filed by criminal defense lawyers worried about the reliability of child testimony. But having reread both briefs, I don't see where Kennedy is getting his too-agonizing-a-moral-choice-for-children point. Both briefs oppose extending capital punishment to rape cases but not because kids should not be forced to make complex moral choices. We let children make those choices every day.
Testifying in a rape case is traumatic, yes. Testifying in a capital rape case would be more so, I imagine. But my stomach goes a little funny reading Kennedy on the inappropriateness of forcing "a moral choice on the child," who is "not of mature age to make that choice." The child has no say in whether the state seeks the death penalty. Any child who reports rape is potentially involving himself in a painful, long-term criminal prosecution, possibly of a loved one. That moral dilemma has absolutely nothing to do with this case. Perhaps it's because Kennedy's talk of moral choices smacks of that same paternalism that animated his decision in last year's partial-birth abortion case—when he fought to protect poor, pregnant teenagers from making choices they'd come to regret—but when the justice starts rooting his constitutional decision-making in the principle of "I'll make the tough moral choices so you don't have to," I get a little freaked out.
So do the dissenters, apparently. Justice Samuel Alito reserves most of his dissent to make the one-way-ratchet point, suggesting that in light of the court's recent Eighth Amendment jurisprudence, a state would have to be nuts to try to expand the reach of the death penalty. Then he calls Kennedy out for privileging his views about the fitness of children for testimony in a capital rape trial over parsing the Eighth Amendment's protections for the rights of the accused. I don't want to suggest that I am unhappy with the result in Kennedy. I happen to agree with the majority that "in most cases justice is not better served by terminating the life of the perpetrator rather than confining him" and that Louisiana did not demonstrate a growing national consensus that nonlethal child rape should be punished by death. But when Kennedy arrives at the correct decision by way of a pit stop at Substitute Moral Judgments for the Weak and Infirm, I can't quite bring myself to celebrate.
Am I overreacting, gentlemen?