In Furman v. Georgia, a case that had the effect of declaring all existing death penalty laws unconstitutional, the Supreme Court said that a judge or jury in charge of capital sentencing must be given more guidance than simply: here is a person convicted of murder; you decide whether to sentence him to imprisonment or death. Giving the sentencer so much discretion, held the Court, creates a circumstance in which the receipt of the death penalty is like a "lightning strike," utterly unpredictable and without a rationally coherent account. The classification of existing capital sentencing as arbitrary in this way stemmed, in part, from the fact that most people convicted of murder and eligible for a death sentence were actually sentenced to a term of imprisonment. Those unlucky few who did receive the death penalty, moreover, were not distinct in the heinousness of their crimes. Judges and juries were therefore using arbitrary factors to decide which murderers should live and which should die. A legitimate sentencing scheme would constrain such discretion and guide judges and juries in what sorts of facts to take into account in making the decision. Following the ruling in Furman, states rewrote their capital sentencing laws and, in Gregg v. Georgia, the Supreme Court upheld capital sentencing that provided jurors with aggravating factors that -- if found -- would distinguish the pool of killers who would, by contrast to the others, be death-eligible.
The reason this "narrowing" principle (requiring that the law narrow the class of death-eligible defendants) is important in Kennedy v. Louisiana is that in those states that provide for the potential execution of rapists of children, almost no convict is actually sentenced to die. It is also true that in those very same states, many more people are convicted of raping children than are convicted of murder. Therefore, the petitioner's attorney ably argued, it follows necessarily from Furman that a statute permitting the execution of anyone who rapes a child grants excessive discretion to jurors to decide which rapists are to live and which are to die. The attorney for Patrick Kennedy suggested, further, that the only factor that currently permits prediction of which child-rapists will find themselves on death row is the failure to plead guilty; that is, the assertion of one's right to trial is the only discernible "aggravating factor" that distinguishes between the the death-eligible rapists of children and all the rest. This argument strikes me as persuasive, particularly because Louisiana (unlike other states that classify child-rape as a capital offense) does not offer any aggravating factors to narrow the class of death-eligible defendants. The degree of discretion is accordingly even greater than that which was invalidated in Furman v. Georgia.
Notwithstanding its apparent persuasive force, however, the only Justice that appeared to engage in very much questioning on this matter was Justice Scalia, who has been very candid about his view that the "narrowing" jurisprudence is utterly wrong and that the Eighth Amendment contains no such a requirement of limiting the sentencer's discretion. He pressed the attorney defending the Louisiana statute on this question, apparently to provide Justice Scalia with ammunition against those on the Court who are not prepared to overrule Furman and its progeny. The attorney's response was to note that the requirement that the jury find that the victim was a child under a particular age narrows the category of crimes sufficiently to satisfy Furman. (In response to this claim, Justice Souter wondered whether it is fair to consider an element of the predicate offense an aggravating factor for purposes of Furman. My thinking is that there is no more than a semantic distinction between a law prohibiting all rape and then classifying victim's age as an aggravating factor, on the one hand, and a law prohibiting rape of children and permitting execution of convicts, on the other. Either the category of death-eligible people is sufficiently narrow to pass muster or it isn't). I suspect that the attorney's answer was inadequate, given that one could as readily characterize murders as cases of armed assault resulting in death with a particularly heinous mental state. If this category is in need of narrowing, then so is the category of rapists of children.
Interestingly, given Mike's recent posts of facial versus as-applied challenges, Justice Kennedy suggested at one point that because Patrick Kennedy, the particular defendant falls into a narrow class of especially serious rapes (he raped an eight-year-old child who was also his own stepdaughter and the rape resulted in extensive vaginal and anal tearing requiring surgery), he was in no position to complain that Louisiana permits the sentencer too much discretion: in his case, there were aggravating facts aplenty. This is, of course, another way of saying that one should not be able to complain about an unconstitutional law unless a properly crafted law would have spared the petitioner the negative outcome in question, here a death sentence. Patrick Kennedy's attorney responded persuasively that the flaw of a statute conveying unbridled discretion to the sentencer may be raised by anyone sentenced to die under that statute. Though a jury might have sentenced Kennedy to die even if instructed under a properly designed law, Kennedy had a right to be judged under such a valid law. This strikes me as correct, in the same way as one could not suggest that an instruction to the jury to find guilt by a preponderance of the evidence would be okay, as applied, in the case of a convict against whom the actual evidence presented was overwhelming.
My prediction is that, assuming the Justices are not prepared to overrule Furman v. Greg, they are likely to hold that the Louisiana statute provides an unconstitutionally broad grant of discretion to the sentencer to determine whether or not a particular defendant should be executed or simply imprisoned. If I am right, then much of the discussion during oral argument in Kennedy tells us more about future cases than about the holding in Kennedy.