[Disclosure: I do not oppose the death penalty. It seems to me to be well deserved in some cases. I do, however, have serious reservations based on the racial and economic disparities in its imposition, as well as on the claims of its deterrent or other penological purpose(s). I would not have been upset if the Court in Kennedy had ruled the other way. But I am hardly outraged that the Court ruled the way it did.]
The gist of the majority opinion in Kennedy, authored by Justice Anthony Kennedy, is twofold. First, there is a national consensus that the death penalty should be restricted to crimes involving the taking of human life. Second, the death penalty is justified only for the most morally depraved crimes—intentional murder fits that characterization; child rape does not.
Let’s be honest. These propositions are questionable at best. Would anyone be persuaded except the already converted and the choir? As for the first proposition, is there really any such national consensus? Can Justice Kennedy, the majority, or anyone else really be confident that the American people or their representatives generally agree that the death penalty should only be for homicidal crimes? Nothing else? Not for any other crime regardless of how violent or inhumane? Not for the rape of a child, no matter how young the child and no matter how brutal the rape? In fact, isn’t the opposite much more likely? That the people and their representatives, if put to a vote, would generally favor the extreme penalty for some other crimes? At least for the most extreme child rapes? Does anyone really doubt that? And if the response is that constitutional decisions by the Supreme Court ought not to be driven by what the people or their representatives happen to think at any given time, then the majority ought not to be relying on it as a basis for its decision. Especially when the majority is very likely wrong about it.
As for the second proposition, that child rape is not as morally depraved as an intentional killing, what metric, whose metric is the majority using? And by whatever metric, can it really be said that child rape—regardless of how wretched or how physically, emotionally, and psychologically damaging or how often or how many victims—cannot equal the depravity of a killing? What notion, whose notion of depravity is that? Some contemporary notion, some current consensus again? But does Justice Kennedy, the majority or anyone else really believe that the American people or their representatives think that a child rape—no matter how aggravated the circumstances—is never as depraved as an intentional homicide? Never sufficiently depraved to justify the sentence reserved for the worst crimes? This proposition is as dubious as the first.
If the response to all this is that only a killing justifies being killed, then that is an entirely different argument. That is not the Kennedy majority’s argument about national consensus or about the level of moral depravity. Nor does that argument get us any closer to the question—i.e., why? Indeed, it’s not an answer at all. It’s the question! And if the underlying point is the ancient prescription of an eye-for-an-eye, then of course we must still confront the consequences of that equation. If death is the equal punishment for a killing, what is the equal punishment for child rape? For the most aggravated crimes of child rape? Not an easy question. And not one satisfactorily addressed in the Kennedy decision.
A final note. The single opinion for the four dissenters in Kennedy, authored by Justice Samuel Alito, criticized the majority opinion along lines similar to those presented here. As has been typical of Alito, the writing was measured, analytical, and devoid of the histrionics and other injudicious nonsense that too often marr dissents in such particularly difficult, divisive, and emotionally-charged cases. [See, for example, Justice Scalia’s dissenting opinion in Boumediene as well as numerous other cases. See also the discussion in “Not Exactly ‘Scalito’ (Part 2),” the June 22 posting on the New York Court Watcher blog.]