Thursday, April 17, 2008

More on SCOTUS and Capital Punishment

All sorts of analyses are being written on yesterday's Baze v. Rees (2008) decision regarding lethal injection. SCOTUSblog has an excellent roundup (here and here) as does Sentencing Law & Policy (here). As predicted, everyone is finding justification for their position, either pro or against the death penalty, in yesterday's 100-page slugfest.

Meanwhile, amidst all the hoopla over Baze, the court was hearing oral arguments in Kennedy v. Louisiana (2008) the case I mentioned last January that looks at the constitutionality of giving the death penalty for the crime of child rape. As I wrote then, the court in Coker ruled unconstitutional the death penalty for the crime of rape of adults, but never said one way or the other whether child rape fits these constraints.

Here's a link to the transcripts from yesterday's argument, and an excellent analysis by Lyle Denniston of SCOTUSblog.

What's fascinating is the "trend" issue, or second test of Trop v. Dulles (1958) concerning legislative action and the 8th amendment. Using the Trop test, the court recently ruled unconstitutional the death penalty for the mentally retarded (Atkins v. Virginia 2002) and juveniles (Roper v. Simmons 2005), based on the number of states which were legislating these categories non-applicable for the death penalty.

Chief Justice Roberts, however, re-framed this case and Coker by asking:

If there's going to be a trend the other way, how does that happen? As soon as the first State says, well, we're going to impose the death penalty for child rape, you say, well, there isn't a consensus, so it's unconstitutional. And do 20 States have to get together and do it at the same time? Or how are they supposed to move the inquiry under Atkins and Roper in the opposite direction?

And the trend since 1995, '90, has been more and more States are passing statutes imposing the death penalty in situations that do not result in death. Didn't we say in Atkins that it's the trend that counts; it's not the number?
That's probably what the issue will come down to. If states (or our "evolving standards of decency") start moving the "other way", towards, let's assume more punitive actions, is that sufficient to overrule Coker and allow for non-homicide crimes, such as child rape, to receive the death penalty?

We'll know by June.

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