With respect to the question of moral depravity, is it really true that every person who is convicted of capital murder and sentenced to death is more morally depraved than every child rapist? 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. See, e.g., Tison v. Arizona, 481 U. S. 137 (1987). 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?Justice Alito thus appeals to the moral intuition that rape or torture can be at least as bad as, or worse than, murder. He might have made the point even more forcefully by pointing to the Court's own 8th Amendment jurisprudence. Under the Court's cases, torture is categorically forbidden as a form of punishment, while death is sometimes permitted. As Sherry Colb notes in a forthcoming article in the Cardozo Law Review, the categorical ban (under the 8th Amendment as well as international law) suggests that torture is categorically worse than killing---at least when the state does the torturing or the killing.
I suppose it's possible to think that torture is worse than killing when the state is the torturer or killer, but that killing is worse than torture when a private actor commits the torture or killing. But it's not at all clear WHY one might think that, and certainly there's no hint of an answer in the majority opinion in Kennedy. Indeed, the majority does not even seem to recognize the apparent inconsistency between these two branches of the Court's 8th Amendment jurisprudence.
I think it's fair to conclude that the majority in Kennedy was not simply imposing its own subjective value judgment that murder is categorically worse than rape of a child. As Justice Alito's examples and the Court's own jurisprudence show, this is not an attractive value judgment and thus one I doubt a majority of the Court holds. Accordingly, the factors that appear to be doing the work in Kennedy are: (1) the fact that very few states permit the death penalty for the rape of a child; (2) the heightened risk of executing an innocent defendant when the testimony of young children is needed; and (3) the Court's lack of appetite for developing a whole new body of jurisprudence about capital sentencing for child rape.
The Court's reliance on factor (1) can be challenged vigorously (as it was in the case and by Justice Alito's dissent) by noting that Coker itself inhibited states that otherwise would have imposed the death penalty for the rape of a child from doing so. Factor (2) could be a reason to adopt special procedures where the testimony of young children is a key element of a case, but it's not clear that it supports a categorical ban: in some cases there will be physical evidence and eyewitness testimony from unimpeached adult witnesses. That leaves factor (3), which, it seems to me, was crucial.
One can read the Kennedy opinion as an admission that the Court's death penalty jurisprudence since Furman is basically a failure: It requires procedures to narrow sentencing discretion but also forbids taking away the sentencer's ability to consider all manner of mitigating evidence; and still the best (negative) predictor of a death sentence may be the quality of lawyering a defendant receives.
In this regard, it is significant that the Court's three anti-death penalty decisions in recent years---Atkins, Roper and now Kennedy---all make classes of individuals categorically ineligible for the death penalty. None of them imposes procedural requirements in the style of the earlier cases. That doesn't necessarily mean that any or all of these cases is rightly decided. But it does suggest that there is a logic to the Court's recent death penalty jurisprudence.
Posted by Mike Dorf