Maybe Death Really Is Different . . .

Dahlia Lithwick — Thu, 17 Apr 2008 15:58:00 GMT

One of the most interesting aspects of the fractured opinions in yesterday’s Baze v. Rees decision on lethal injections is that they almost read like an elaborate MMPI result. Some are almost stunning for how much individual judicial temperament and personality shine through. Justice Stevens concurrence is remarkable, for instance, for its late-in-his-career assessment that in the wake of “extensive exposure to countless cases for which death is the authorized penalty” which (quoting Justice White in Furman) makes only “marginal contributions to any discernible social or public purpose,” he’s concluded that capital punishment violates the Eighth Amendment. Justice Scalia concurs separately just to respond that Stevens’ conclusion is “insupportable as an interpretation of the Constitution” and that his “policy analysis . . . fails on its own terms.” He then holds out Stevens conversion on the death penalty as the height of “rule by judicial fiat,” and closes by scoffing that Stevens has subordinated legal scholarship, the work of legislators, and the preferences death penalty supporters to his own personal experience which “reigns over all.”

You all probably remember this movie from the first time we saw it, in Kansas v. Marsh. Still, I wonder whether it’s the death penalty itself that brings out these very pointed, personal reflections and stinging personal attacks from the justices, of if there is something about the rather dishonest way we are having the whole conversation about it that gets them so riled up.

No Time for Revival

Diane Marie Amann — Wed, 16 Apr 2008 10:10:00 GMT

Does the cruel-and-unusual punishments clause of the Eighth Amendment to the U.S. Constitution forbid execution for crimes that do not result in the death of the victim?

That's a wide-angle framing of the question on which the Supreme Court's set to hear oral argument this morning in the case of Kennedy v. Louisiana.

The narrower question is whether execution for rape of a child is constitutional. The state's brief stresses the age of the victim. No surprise there. For on matters such as possession of pornography, the court's allowed criminal punishment for conduct that the Constitution would protect if only consenting adults were involved. Such a narrow emphasis, however, obscures the question of proportionality that underpins any system of criminal justice.

Is a sentence of death grossly disproportionate and excessive punishment for the crime of rape, and therefore forbidden by the Eighth Amendment as cruel and unusual punishment?

Yes.

Or so said a majority of the court, in almost the exact same words, when it invalidated a death-penalty-for-rape in Coker v. Georgia (1977). But that was then, this is now. Justice John Paul Stevens is the only member of that majority still on the court, and in the interim three decades, concerns about crime have pushed to the fore.

Concerns about crime have not, however, fully displaced the concerns that animated the court in Coker. The concern that capital punishment for nonlethal crime evades proportionality was shared with jurists in other common law countries, briefing indicates. And there was another concern, too. Before Coker capital rape cases were brought overwhelmingly against African-American defendants, as Stuart Banner demonstrated in his The Death Penalty. Outlawing such cases thus eliminated a prime source of racially disparate sentencing. One sees no reason now for revival.

(Cross-posted on IntLawGrrls blog)

Convictions : 8th Amendment

Maybe Death Really Is Different . . .

No Time for Revival