Wednesday, June 25, 2008

A couple of thoughts on the death penalty and Kennedy v. Louisiana

Regarding Kennedy v Louisiana, Ilya Shapiro at Cato-at-Liberty writes:

I won’t say much about Kennedy, other than that, as he has so, so many times in the past, Justice Kennedy again shamelessly substituted his own policy preferences for the will of the people. Regardless of one’s views on whether certain types of crimes short of murder(aggravated rape, child rape, treason, etc., etc.) warrant the death penalty, this is an issue properly left to the people and their elected representatives in state legislatures. We do not pick nine (left alone five) black-robed lawyers to be our moral arbiters, philosopher-kings, or bureaucrats-in chief. Kennedy versus Louisiana indeed!

Two (somewhat long) thoughts:

First, reasonable people can (and do) disagree on the outcome. Shapiro's comment on leaving these matters up to the states is likely the position I would have taken in the Roper v Simmons ruling, which addressed the death penalty for 16 or 17-year olds. As for the rest of his post, I do believe that Justice Kennedy was accused of "shamelessly substituting his own policy preferences for the will of the people" in the very libertarian-oriented Lawrence v Texas so I don't know if I would go down the "will of the people" road because libertarians understand, rightly, that the "will of the people" is a far greater threat to liberty than any so-called judicial tyranny.

Second, I would have rather seen this decision "flow" from Coker v Georgia (see Kipesquire's analysis on the issues here and here) rather than the "evolving standards of decency". On principle, I wouldn't want any branch of government making the determination of what is decent and what is not. I rarely spend time studying Eighth Amendment jurisprudence so I am admittedly out of my element here, but if Coker describes a theory of justice and punishment that is consistent with the text of the Eighth Amendment, then why not build off of that?

Otherwise, the subjectivity of making a "national consensus" determination just makes a mess of things. For example, Justice Alito's dissent argues that "misunderstandings" of previous case law (specifically Coker v Georgia, which addressed the unconstitutionality of the death penalty for rape of an adult woman) has worked to prevent a "national consensus" because states that were considering the death penalty for child rape decided not to pursue these laws because of a (possible) misunderstanding of Coker. Also, Jim Lindgren over at the Volokh Conspiracy posts old poll data that suggests a different "national consensus" different than the one put forth by Justice Kennedy. Why base a legal opinion on a concept that can be so widely disputed that it can completely undermine the decision? Again, these are questions for lawyers and not people like me.

For the record, I make two disclosures:

1. I oppose the death penalty on practical grounds. I do believe, however, that capital punishment is a just punishment for the taking of another human life.

2. I believe that the taking of another life is the only justification to administer the death penalty, and I think it can become incredibly problemmatic. Punishment should be proportionate to the crime committed. While I have no problem with locking up child rapists and throwing away the key (for good), I can not accept that the death sentence for child rape, adult rape or any violent crime where the victim survives is somehow proportional. Revenge and, as Kip puts it, "naked bloodlust" are not legitimate reasons to elevate crimes that understandably shock the conscience to capital offenses.

Maybe these views bias me on the issue, as I think the Court did reach the right conclusion although I think the legal reasoning is a bit suspect.

Last, I want to thank Mark for inviting me to post over at this blog. As I love his work, I do take it as an honor and I'm glad to be here.