State constitutional adjudication in a footnote? A critique of the Supreme Court of Louisiana's decision in State v. Kennedy.

• Author: Blackwell, Kevin

1. INTRODUCTION

   The Supreme Court of Louisiana recently upheld a death sentence for a conviction of aggravated rape of a minor in State v. Kennedy. (1) While the potential implications of this decision on the proportionality jurisprudence of the Federal Constitution have yet to be finalized, (2) the decision poses some interesting questions regarding Louisiana's state constitutional proportionality jurisprudence. Like many states, the Constitution of Louisiana contains provisions that provide rights similar to those provided by the Federal Constitution. (3) Where the Eighth Amendment provides that "[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted," (4) the Constitution of Louisiana provides that "[n]o law shall subject any person to euthanasia, to torture, or to cruel, excessive, or unusual punishment." (5) While both of these respective provisions undoubtedly serve similar functions, the protections provided by the Constitution of Louisiana seem facially more expansive. (6)

   The Supreme Court of Louisiana dealt with the state constitutional challenge to the death sentence summarily in a footnote. (7) The entirety of the state constitutional analysis of the proportionality challenge to the death sentence consisted of the following:

   In State v. Perry,... we held that "[t]he framers of our state constitution clearly intended for this guarantee to go beyond the scope of the Eighth Amendment in some respects and to provide at least the same level of protection as the Bill of Rights and the Fourteenth Amendment and all others." Indeed, distinct from the Eighth Amendment, Art. 1, [section] 20 expressly prohibits "euthanasia," "excessive" punishment, and "cruel or unusual" punishment. However, for purposes of capital punishment for child rape, we find this language does not provide any additional protections beyond those provided by the Eighth Amendment. (8) The problem with this analysis is not that the Supreme Court of Louisiana finds that the death penalty for child rape is not contrary to the proportionality requirement of the Constitution of Louisiana, but that the court fails to articulate what that standard is, and why the death penalty for child rape fails to violate that standard. The purpose of this Note is to explore what the standard for excessive punishment under the Constitution of Louisiana is, and how the Supreme Court of Louisiana could have adjudicated this matter more appropriately. Part II will explore the historic role of state constitutions, and state high courts, in providing individual rights to their citizens for the purpose of providing a context against which the actions of the Supreme Court of Louisiana can be evaluated. Part III will identify and discuss the various methodologies utilized by state high courts to adjudicate issues concerning fundamental rights under either the Federal Constitution or their state constitutions. These methodologies will provide a theoretical framework to identify and further evaluate what the court has done in its jurisprudence. Part IV will explore how other state high courts have treated challenges to punishments under their respective excessive punishment provisions, which will further contextualize our inquiry. Answering the first part of our inquiry, Part V will determine, according to the jurisprudence of the Supreme Court of Louisiana, what the standard for excessive punishment under the Constitution of Louisiana is. Finally, addressing the second part of our inquiry, Part VI will critique the decision in light of the findings of Parts IV and V, and will discuss the possible reasoning for the approach adopted by the Supreme Court of Louisiana.

2. THE ROLE OF STATE CONSTITUTIONS

   Since the end of the Warren Court era and the Supreme Court's decision in Michigan v. Long, (9) state high courts and constitutions have played an increasingly important role in the recognition and protection of fundamental rights. (10) This trend does not mark any new innovation in constitutional law, but is a re-emergence of the former state of affairs of constitutional law. (11) In fact, the status of state courts as the defenders of fundamental rights, and state constitutions as the foundation of those rights, is, if anything, the norm for our Republic. (12) Prior to the emergence of the activist Supreme Court of the mid-twentieth century, it was the state high courts that recognized and defended individual liberties. (13) When the Federal Constitution was ratified, there was no Federal Bill of Rights attached; (14) in fact, the Bill of Rights was not ratified until four years after the Federal Constitution was drafted. (15) The initial theory of the Federalists was that a bill of rights was not necessary, because the enumerated powers of the federal government would be sufficient to protect individual liberties from possible infringements by the federal government. (16) Furthermore, the Federalists believed that the protection of individual liberties was the province of the states' constitutions and governments. (17)

   This view was largely undisturbed for the majority of our nation's history, even after the ratification of the Fourteenth Amendment, (18) which extends the protection of fundamental rights from infringement by the federal government to infringement by the state governments. (19) The Supreme Court, however, did not begin to recognize this extension of the protection of fundamental rights from state action until 1925. (20) In Gitlow v. New York, (21) the Supreme Court first recognized that the protection of fundamental rights from state action was provided by the Fourteenth Amendment. (22) The Court gradually expanded those rights that it recognized as fundamental rights protected by the Fourteenth Amendment over the next fifty years or so, becoming the most protective of fundamental rights during the Warren Court. (23) With the emergence of the Burger Court, the Court became less protective of fundamental rights, (24) and then, during the Rehnquist Court, it completely abdicated its assumed role as the principal protector of our fundamental rights. (25)

   The Supreme Court's decision in Michigan v. Long is arguably where this change in the Court becomes most obvious. In Long, the Court assumed jurisdiction and reversed the judgment of the Supreme Court of Michigan. It did so because that court had announced that the search in question was unconstitutional under both the Constitution of Michigan and the Federal Constitution and because that court had analyzed federal search and seizure jurisprudence too narrowly and provided too broad a protection of the rights of the accused. (26) The Supreme Court basically said two related things. First, if it is not clear that a state high court decision rests on adequate and independent state grounds, we will assume we have jurisdiction. (27) Second, a state high court may protect rights more expansively by interpreting its own state constitution, but not by interpreting the Federal Constitution. (28) The former proposition marks a drastic change in the way the Court approached the review of decisions of state high courts. (29) Formerly, the Supreme Court would only assume jurisdiction if it was clear the decision had been based on federal law. (30) The approach adopted in Long amounts to a 180-degree shift in its jurisdictional jurisprudence over state high courts with the Court now presuming jurisdiction over cases with "at least a scintilla of federal law involved." (31) The latter proposition is affirmed by one of the motivations the Court had for adopting its new approach to the review of state high court decisions. The Court reasoned that this new approach would give state high courts an "opportunity to develop state jurisprudence unimpeded by federal interference, and yet will preserve the integrity of federal law." (32)

   The Long decision can almost be viewed as a commandment to the state high courts to interpret their respective constitutions to protect rights to whatever extent they desire, but not to mess with the Federal Constitution, or federal jurisprudence. (33) If a state high court bases its decision on "adequate and independent state grounds," the Supreme Court will not presume jurisdiction and review the decision. (34) In essence, the state high court is free to interpret the state constitution and law to be as protective of individual rights as it would like when its decision rests on "adequate and independent state grounds." (35) On the other hand, if the state high court invokes federal precedent in the absence of a plain statement indicating that the decision is based on state law, then the Court will presume that it has jurisdiction. (36) Basically, by invoking the Federal Constitution or federal precedent, the state high court surrenders exclusive jurisdiction. (37) In that event, the state high court's ruling is constrained by the Supreme Court's interpretations of the Federal Constitution, and federal jurisprudence. (38) It is in this context that the methodologies utilized by state high courts to adjudicate issues of fundamental rights can be properly understood and explored.

3. METHODOLOGIES

   When we refer to what methodology a state high court is using to adjudicate an issue concerning a fundamental right, we are referring to what law the court is using to resolve the issue and the order that the court proceeds in its analysis of the applicable state or federal law. The questions being asked when you make these determinations are: (1) Is the court using state or federal law or both and (2) In what order are the respective laws analyzed? There are four basic methodologies a state high court can employ to adjudicate an issue concerning a fundamental right: the primacy approach, the dual sovereignty approach, the supplemental approach, (39) and the lock-step approach. (40) The particular approach adopted by the respective...