By Mike Dorf
On Slate, Emily Bazelon questions the wisdom of seeking the death penalty for accused Cleveland kidnapper/torturer Ariel Castro. Bazelon accepts that Castro stands accused of truly heinous acts but he could not be executed for holding his victims hostage as sex slaves for a decade. He could only be executed if convicted of homicide, and the only homicide counts concern miscarriages he allegedly induced deliberately by starving and beating Michelle Knight, whom he had repeatedly raped. Bazelon argues that executing Castro for the harm he did to a fetus would be disingenuous; that was a serious crime, to be sure, but what makes Castro seem like a monster is what he did to the women he held as sex slaves.
The Slate article quotes extensively from two earlier columns by two DoL bloggers: one from 2004 by Professor Colb and another from 2003 by me. In different contexts, each of us argues that laws criminalizing fetal homicide do not violate the letter or spirit of Roe v. Wade. As Professor Colb (quoted by Bazelon), wrote, under Roe, "the choice of abortion belongs to the mother, and . . . taking away that choice by killing her fetus without her consent does as much—or more—violence to reproductive freedom as a prohibition against abortion would.”
I continue to think that fetal homicide laws are constitutionally permissible and that pro-choice groups make both a moral and a public-relations mistake when opposing such laws. However, making feticide a capital crime raises additional concerns. Here I think the constitutional issues are open and more difficult.
Under Coker v. Georgia and Kennedy v. Louisiana, the 8th Amendment prohibition on cruel and unusual punishments disallows the death penalty for non-homicide offenses. The Court in Kennedy gives two core reasons for the prohibition: first, as judged by positive law and state practice, there appears to be a nationwide consensus that the death penalty is disproportionate even for the very serious crime at issue there, the rape of an 8-year-old; second, as a normative matter, the death penalty should be reserved for the most serious offenses, and the line between homicide and non-homicide offenses is part of the threshold. (That's with respect to what the Court calls crimes against individuals, rather than crimes like treason.)
I think it's quite possible that the SCOTUS, if faced with the question, would say that there is also a consensus that the death penalty is disproportionate for feticide. Bazelon notes that 38 states have laws banning feticide but it's not clear how many of those states permit the death penalty for feticide and, to my knowledge, no state has, in recent memory, sentenced someone to death for feticide. (Scott Peterson was sentenced to death for the murder of his 8-month-pregnant wife but the feticide was not itself the death-eligible offense.) I'm not very confident about how the SCOTUS would evaluate the evidence of positive law, however; it's possible that states have not sentenced people to death for feticide because they think that existing SCOTUS precedent disallows doing so.
In any event, the normative considerations are separate and I'd like to focus on them because here a conflict with Roe is possible. Let's suppose that the 8th Amendment flatly forbids imposition of the death penalty for a non-homicide offense. The question is whether Roe has any bearing on whether feticide is a homicide offense.
Prima facie, I think the answer is yes. Suppose that some state were to classify the deliberate killing of a healthy dog as homicide, punishable by the death penalty. I think it clear that would violate Kennedy and Coker, and it would make no difference if state law also defined dogs as "persons" or "humans" for purposes of the homicide law. Why? Because the meaning of "homicide" in the Court's 8th Amendment jurisprudence is a matter of federal constitutional law, not a matter of state law. Thus, likewise, if a fetus is not a person for 8th Amendment purposes, then state laws criminalizing feticide are non-homicide offenses for 8th Amendment purposes.
So, what bearing does Roe have here? The questions are open, but I would say that the combination of Roe/Casey and Coker/Kennedy probably makes the death penalty unavailable for the killing of a non-viable fetus. The abortion cases say that the state interest in a pre-viable fetus is insufficient to overcome a woman's interest in freedom from remaining pregnant, so it's a fair conclusion that the state's interest in a pre-viable fetus is also insufficient to overcome an attacker's interest in his continuing to live, i.e., not to be executed.
I'm not super-confident of that answer, however, because the analysis seems to prove too much. After all, one could also conclude on the basis of Roe/Casey that the state's interest in a pre-viable fetus is insufficient to deprive a person of his liberty from physical restraint. But that's not right, because we know that the state may criminalize feticide of a pre-viable fetus and punish acts of feticide with imprisonment. So perhaps the viability line simply has no bearing on non-abortion feticide cases.
What about feticide of a viable fetus? One could make a Roe-based argument that even then, the death penalty is unavailable because Roe held that fetuses are not "persons" within the meaning of the 14th Amendment. That's an available reading but not, in my view, the best reading of Roe. I read that portion of the Court's opinion as addressing the question of whether the state must criminalize abortion rather than the question of whether the state may criminalize abortion. So one could read the opinion as a whole to say that the states may treat viable fetuses as though they are, in some respects, persons (subject to the availability of abortion for life-saving and health reasons even after viability). And one might then also say that the state may (but is not obligated to) treat feticide of a viable fetus as homicide for 8th Amendment purposes.
My own view, for what it's worth, is that the lines in the abortion cases ought to be treated as tangential. I oppose the death penalty categorically, but assuming that I take for granted the availability of the death penalty for some homicide offenses, I would allow it (as an 8th Amendment matter) for some intentional killings of sentient fetuses, whether or not they are viable. For me, the morality of abortion turns on whether it kills a being with interests of its own, and only sentient beings have interests of their own. I would still allow criminalization of feticide of a pre-sentient fetus because such an act does terrible harm to the would-be parents of the fetus killed.
(If you want the fuller explanation, you'll need to wait for the completion of a book that Professor Colb and I have begun co-authoring addressing abortion and animal rights. Her solo forthcoming book, Mind If I Order the Cheeseburger?: And Other Questions People Ask Vegans, gives a partial account of the view in a chapter on abortion, and will be available for purchase next month. You can pre-order it already here or here.)