Role Reversal in Kennedy v. Louisiana: Or What's Sauce for the Goose . . . .

Last night, the death penalty seminar I teach did a moot court of Kennedy v. Louisiana, presenting the question whether capital punishment is unconstitutionally disproportionate to the crime of the rape of a child.  I do at least one of these moot courts every time I teach the seminar, but this was the first time I did so without benefit of the actual oral argument transcript or even the Petitioner's reply brief -- the case is scheduled for argument on April 16 and the Respondent's brief was filed just last Wednesday.   The thing that struck me most after reading the briefs and participating in the moot was the sense of role reversal from Atkins v. Virginia and Roper v. Simmons.  Kennedy is almost the mirror image of those cases in several respects.

First, in Kennedy, it is the State that is relying heavily on social science data to prove the irrevocable harm to the victim of child rape, to distinguish the case from Coker v. Georgia, which holds that the death penalty is unconstitutionally disproportionate for the rape of an adult woman.  One section of the Respondent's brief is replete with references to articles from social science journals discussing all the harms caused by child rape, many manifesting themselves later in life.  This is reminiscent of the social science data relied upon so heavily by the defendants in Atkins and Roper to support the proposition that the mentally retarded and juveniles, respectively, are, as a class, less culpable and deterrable than other offenders.

Second, only six States capitalize child rape, a number that ordinarily would greatly help the defendant in showing that there is a national consensus against the death penalty for child rape.  But, as the Respondent points out, Atkins and Roper both emphasize not simply the raw numbers in determining whether there is a national consensus, but "the consistency of the direction of change."  In Atkins and Roper, the defendants both successfully argued that, even though only 30 of the 50 States -- and only 18 of the then-38 death penalty States -- banned the death penalty for the mentally retarded and juveniles, respectively, "the consistency of the direction of change" showed an emerging national consensus because a number of States had recently enacted such bans.  In Kennedy, the State is able to flip this logic to their advantage by showing that all six States that capitalize child rape have done so within the last dozen years or so.  Thus, "the consistency of the direction of change" in this context shows the lack of any national consensus because more States continue to capitalize child rape, breaking down whatever national consensus might otherwise exist.  Moreover, while the defendants in Atkins and Roper were able to emphasize that the numbers of States enacting such bans were even more significant given the relative unpopularity of legislation that could be seen as "soft on crime," the State here can argue that the number of States capitalizing child rape is all the more significant in the face of the fact that many State legislators likely read Coker as banning the death penalty for all rape.

The final way in which Kennedy seems to be a mirror image of Atkins and Roper can be appreciated only by delving into Coker.  Coker can be read either as forbidding the death penalty for the rape of an adult woman or as forbidding the death penalty for the crime of rape generally.  Obviously, Respondent urges the Court to take the former reading and Petitioner urges that the Court take the latter reading.  In Coker, the Court pointed out that Georgia alone allowed the death penalty for the rape of an adult woman so it was not hard for the Court to find the practice "unusual" in the Eighth Amendment sense.  Yet, only two other States at the time provided for the death penalty for child rape.  So even if the Court had addressed the constitutionality of the death penalty for child rape at the time of Coker, it seems to me the result would have been the same -- if only 3 of 50 States allow it, there is a national consensus against its use.  After all, only five years later in Enmund v. Ohio, the Court found a national consensus against the death penalty for a minor participant in a felony murder who neither kills, intends to kill, or attempts to kill, where only 8 of the 50 States allowed for the death penalty in that context.  It seems to me a difficult task for the State to argue that Coker doesn't settle the issue.  Or at least that Coker didn't settle the issue in 1977.

And that brings me to my point:  Respondent could have argued (but didn't) that regardless of the best reading of Coker as of 1977, the Eighth Amendment has changed as society has evolved.  That is precisely what the Court suggested in Atkins  and Roper.  The Court in those cases did not overrule its prior precedents holding the death penalty constitutionally acceptable for the mentally retarded and juveniles, respectively.  It appeared to hold instead that the meaning of the Eighth Amendment had itself changed between 1989 and 2002-2005.  At least one argument the State could have made in Kennedy is that a similar change has occurred here, albeit in the opposite direction, refuting the notion that the "evolving standards of decency" test is a ratchet.

Time will tell whether any of these arguments appeal to the Members of the Court most likely to vote to uphold the Louisiana statute.  It is certainly unlikely that Justices Scalia and Thomas would sign onto any opinion holding that the meaning of the Eighth Amendment has actually changed in the last 31 years.  By the same token, it will be interesting to see what the more moderate Justices can do to get around what they set themselves up for in Atkins and Roper.  Perhaps the most likely outcome will be a four Justice plurality consisting of the Chief Justice and Justices Scalia, Thomas, and Alito upholding the statute but rejecting (or ignoring) the Atkins/Roper methodology, with Justice Kennedy writing a separate concurrence in the judgment adapting that methodology to uphold the statute here. [Mike Mannheimer]