Thursday, June 26, 2008

Death or Torture?

In questioning the logic of yesterday's decision in Kennedy v. Louisiana, Justice Alito poses the following pair of hypothetical examples in his dissent:
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


  1. I can't help but imagine how different this opinion would have been had a justice other than Kennedy wrote it. The real danger, as I see it, with execution for child rape, in addition to the problems with *all* executions, is the disparities with which it is applied. It's far easier for us to draw a bright line at death -ok, anything else-not, then allowing individual juries to decide when the death penalty is appropriate in child rape cases. If other states were following Louisiana, we'd likely see male-male child rape and black-white child rape disproportionately punished. Justice Kennedy, and McCleskey, seem to be okay with this at least as far as murder goes. But the class of crimes of "child rape" has such broad factual patterns that I think the potential for egregious abuse would likely have concerned some of the other Justices.

  2. Beyond a certain level of atrociousness, it seems hard to me to say that crime X is worse than crime Y. Is it worse to be raped and torted for 2 hours and have your right hand cut off, but then freed, or to be raped and tortured for 2 weeks and then be freed with your right hand in tact? What's your preference? Seems like a weird question to ask when put that way. Indeed, in the comparison that the Court makes, and as elicited by Justice Alito's hypo, there are many circumstances under which I would far prefer to be killed rather than raped and tortured.

    Point is, "which crime is worse - horrendous crime X or horrendous crime Y" seems to be the wrong question. Without deciding whether I'm in support of the death penalty generally, it seems that IF we are going to have one, as a symbolic matter, all crimes beyond a certain level of atrociousness should be death-penalty eligible, and it seems to me that child rape would by most people's accounts, fall into that class.

    Indeed, it's strange to think that an approach that echoes Hammurabi's Code can be touted for its decency.

    As a pragmatic matter, however, I personally think a life term in a maximum security prison is worse than death, but I appear to be in the minority in this view.

  3. "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."

    I don't think that's fair to conclude at all. Kennedy expressly relies on (a) objective factors (which he simply invents, so they're obviously not all that objective), and (b) the "court's own judgment," i.e. the subjective value judgment of five people.

    During oral argument, Stevens insisted on the point that the victms wounds did, in fact, heal. That may be true of the physical wounds (uh, after some surgery, but let's ignore that point, like Stevens did), but what of the psychological wounds? This girl has to live knowing (a) her body was literally ripped to pieces in the most horrible act of violation a man can commit, and (b) the Supreme Court just handed down a ruling, based on no objective standards at all, that is the legal equivalent of "suck it up, you wuss. It's not that bad."

  4. There's a sideshow here, too: What about the death penalty for treason and for espionage, neither of which meets the "dead victim plus intent" test imposed in Kennedy? Those are admittedly rare offenses... but that is primarily a tactical result of the plea-bargaining when they're prosecuted (the prosecution is usually more interested in preventing further damage by getting more information from the miscreant about what he did than it is in retribution).

    In general, I side with Justice Blackmun. It's not good enough to say that, in the abstract, some crimes "merit" the death penalty. One must also acknowledge that there is a system in place to make that determination; that the system is inherently flawed; and that one improper application is unacceptable.

  5. Oops, silly me; I left a sentence off...

    That first paragraph should end "But the opinion doesn't explicate a principled distinction from the 'dead victim' standard that does not equally apply to child rape."

  6. I think you hit it right on the head: factor (3) is at work here. Administrative efficiency rules the day yet again; the other factors are window dressing.

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