5-4, with Kennedy joining the liberals to make a majority and the conservatives in dissent, the same posture for most “values” cases these days and just the latest reminder that Americans are fully justified in their cynicism about how the Court goes about deciding these things. Here’s the opinion. Don’t be afraid to dive in, as Eighth Amendment cases are mercifully jargon-free and Alito’s dissent, which starts on page 42, is a sterling example of his clean, accessible prose style.
The interpretive dilemma for “cruel and unusual punishment” is the same as for all constitutional clauses, except more starkly so: If you follow the originalist model here and define the term by using the Founding Fathers’ standards, then conceivably it’s constitutional to let prisoners be drawn and quartered. Rather than let the amendment process of Article V deal with that, though, the Court long ago decided that “cruel and unusual” should be determined according to society’s “evolving standards of decency.” How do they determine what those standards are? Simple. They use their own standards of decency, then go look for whatever data they can scrounge about social attitudes to make it seem like they’re taking the culture’s pulse. One might suggest, as Alito does, that a better gauge of society’s standards in a democracy are the actual laws that it passes — like, say, laws punishing child rape with death — but in that case, every duly enacted punishment would be constitutional per the Court’s test. So we’re stuck with this charade where the majority pretends that it’s divined some sort of National Ethos against executing child rapists and that it’s merely applying that Ethos instead of imposing its own judgment of what’s right and what’s not and dressing it up as the people’s will.
The irony (just one of many, like why, if this National Ethos exists, the Court doesn’t leave it to the public to pass a constitutional amendment formally recognizing it, or why, per Alito, the Court won’t acknowledge that it’s own prior rulings on the death penalty have prevented a true National Ethos from freely forming) is that America’s standards have actually evolved to be more sensitive to crimes committed against kids. Never has public awareness been greater of how abuse affects children psychologically, and virtually no one disputes that rape, let alone rape of a child, can be life-ruining. Look at the FLDS case, where the possibility of underaged girls being preyed on by men caused a national uproar. No wonder, then, that some states want to raise the penalty on a particularly vicious strain of child abuse. If Kennedy and his pals in the majority were honest about divining the National Ethos, they’d acknowledge that. But as I say, the “evolving standards” line is a scam in the same way that it’s a scam in other cases when the Court tries to divine international standards of opinion by citing statutes from European countries — but never from, say, Saudi Arabia or Iran. (Point being, they shouldn’t be citing foreign law at all.)
Here’s the money passage from Alito responding to Kennedy’s baseline nonsense that only murder is depraved enough to warrant the ultimate punishment. Citations omitted:
With respect to the question of moral depravity, is it really true that every person who is convicted of capital murder and sentenced to death is more morally depraved than every child rapist? Consider the following two cases. In the first, a defendant robs a convenience store and watches as his accomplice shoots the store owner. The defendant acts recklessly, but was not the triggerman and did not intend the killing. In the second case, a previously convicted child rapist kidnaps, repeatedly rapes, and tortures multiple child victims. Is it clear that the first defendant is more morally depraved than the second?
The Court’s decision here stands in stark contrast to Atkins and Roper, in which the Court concluded that characteristics of the affected defendants—mental retardation in Atkins and youth in Roper—diminished their culpability. Nor is this case comparable to Enmund v. Florida, 458 U. S. 782 (1982), in which the Court held that the Eighth Amendment prohibits the death penalty where the defendant participated in a robbery during which a murder was committed but did not personally intend for lethal force to be used. I have no doubt that, under the prevailing standards of our society, robbery, the crime that the petitioner in Enmund intended to commit, does not evidence the same degree of moral depravity as the brutal rape of a young child. Indeed, I have little doubt that, in the eyes of ordinary Americans, the very worst child rapists—predators who seek out and inflict serious physical and emotional injury on defenseless young children—are the epitome of moral depravity.
Quite so. And maybe in the eyes of less ordinary Americans too, as we’ve all heard stories about the sort of special “justice” reserved in prison for inmates convicted of abusing kids. Even ardent opponents of the death penalty, I suspect, wouldn’t shed any extra tears over the execution of a child molester who beats some kid’s head in “merely” to the point of leaving him in a coma versus one who succeeds in finishing the job.
The ultimate irony here is that they’re using an ad hoc metric — the “evolving standards” test that theoretically changes day by day (but only ever towards greater “progressivism”) — to institute what’s actually a fixed, bright-line rule. No death except as repayment for death, because if they allow capital punishment for child rape, what’s next? Capital punishment for violent assault? For larceny, a la 17th century England? Either is unlikely in the extreme, but partly because they don’t trust the public and partly because they know their own test is crap and don’t trust it to produce persuasive distinctions between child rape and some lesser crime in a future case, they’ve decided to simply take the issue off the table. That is to say, after paying lip service to letting the will of the people guide them and trusting the “evolution” of American culture to go the right way, the Court ends up with a diktat set in stone that’s aimed squarely at preventing the sheeple from executing people for petty crimes at some dark distant point down the road. Perfect.
Exit question: Death penalty opponents like to argue that life in prison is actually worse. If you want a murderer to suffer, the theory goes, why give him an easy way out with a hot dose? Stick him in a dingy cell for 50 years and let him waste away. If that’s so, how does it square with Kennedy’s claim that murder is uniquely terrible? If some forms of existence are so physically or psychologically painful that death is actually more humane, then why is the guy who murders a child unthinkingly presumed to have done more harm than one who beats, rapes, or otherwise abuses him until he’s a basket case condemned to a life of misery? And, follow-up question: If we’re taking Kennedy and those death penalty opponents seriously (which we’re not), does their assertion that child rapists haven’t done as much harm as murderers mean that rapists should be executed because, after all, execution’s supposedly a lesser punishment?