Beyond Lawrence: metaprivacy and punishment.

• Author: Greene, Jamal

ARTICLE CONTENTS

INTRODUCTION I. LAWRENCE V. TEXAS AND METAPRIVACY A. Lawrence as On Liberty B. Lawrence as Metaprivacy 1. On Desuetude 2. On Recognizing Recognition 3. On the Politics of Recognition II. ON CONSTITUTIONAL FIT A. Constitutional Privacy in the Courts 1. Tort Privacy 2. Fourth Amendment Privacy 3. Fundamental-Decision Privacy B. Constitutional Privacy in the Academy III. METAPRIVACY AND CRIMINAL SENTENCES A. Our Retribution Is Character-Based B. The Constitutionality of Character-Based Retribution C. Responding to Objections 1. Hate Speech and the First Amendment 2. Judicial Review of Choice of Punishment 3. Recognizing Recognition Redux 4. On Free Will 5. On Mitigation D. Normative Question CONCLUSION INTRODUCTION

Can the state kill someone for being a bad person? Consider the following Connecticut case: In 1997, Todd Rizzo, then eighteen years old and already an ex-Marine, invited thirteen-year-old Stanley Edwards into his backyard, telling him that they would be hunting snakes. Once there, Rizzo straddled Edwards, in Rizzo's words, "like a horse," and struck him thirteen times with a sledgehammer as the boy pleaded for his life. He dumped the dead body in the woods nearby. Rizzo's motive? While stationed in Hawaii less than a year before the murder, the members of Rizzo's platoon had been asked to list their ten goals in life. The second goal on Rizzo's list was "to kill a man." An avid student of past serial killings, Rizzo told police after he was taken into custody that he had bludgeoned Edwards to death because he wanted to see what it felt like. He pleaded guilty to capital murder and was sentenced to death in August 1999. (2)

I suspect that many Americans, regardless of their moral or legal stance on capital punishment, would at least deny any inconsistency in believing both that the state may execute people like Todd Rizzo, and that it may not kill someone for being a bad person. It is not a difficult moral position to make out: Individuals are sentenced to death because they are convicted of committing heinous crimes, not because they are bad people, though the former may be strong evidence of the latter. The premise of this position is more complicated, however, than I have presented it. While being convicted of a heinous crime is a necessary precondition of a capital sentence, it is not a sufficient one. Many convicted of murder are not sentenced to death, and not only because of the capricious nature of sentencing juries or the serendipity of a plea bargain. In Woodson v. North Carolina, the Supreme Court found within the Eighth Amendment the notion that some convicts are more death-worthy than others. (3) As such, no capital sentence since Woodson may be imposed without considering, in some fashion, (4) those factors that aggravate and mitigate an individual's death-worthiness. Among the aggravating factors that were a but--for cause of Todd Rizzo's capital sentence were his "long-standing fascination with violent death and serial killers; his preexisting desire to kill; and the callous way in which he disposed of the victim's body." (5) Rizzo, then, was not sentenced to death because he was found guilty of a heinous murder--that only explains his detention. He was sentenced to death because he had what Immanuel Kant called "inner wickedness." (6) He would be a prime candidate for a diagnostic label for which a number of psychiatrists have been agitating in recent years: clinically "evil." (7)

For most of America's constitutional history, the distinction between detention for conduct and detention for constitutive character has not been legally relevant. That American courts did not, by and large, scrutinize punishments for unconstitutional excess before the mid-twentieth century provides a partial explanation, (8) but the more important one is that we have viewed punishment for "inner wickedness" with skepticism during only a brief and recent epoch in our constitutional life. The homosexuality cases are paradigmatic. As late as 1986, the Court was "quite unwilling," in Bowers v. Hardwick, to "announce ... a fundamental right to engage in homosexual sodomy." (9) Homosexual sex acts could be criminalized because the Court refused to acquiesce in the view that "majority sentiments about the morality of homosexuality should be declared inadequate." (10) The past decade, however, has brought us Romer v. Evans, in which the Court declared that a Colorado constitutional amendment prohibiting the enactment of gay-friendly antidiscrimination laws violated the Equal Protection Clause, (11) and Lawrence v. Texas, which affirmed the right of adults to engage in consensual homosexual relations in the privacy of their homes. (12) Whatever its enduring contours, Lawrence seems at least to turn a suspicious eye toward arguments against conduct grounded in the subjective moral illegitimacy--rather than the objective social effects--of that conduct.

This Article develops this reading of Lawrence and, focusing particularly on capital sentences, considers the extent to which the logic of Lawrence compels an inquiry into the constitutionality of incremental punishment based on character. On Justice Kennedy's terms, Lawrence stands for the proposition that the state may not punish the conduct that "define[s]" an individual as homosexual, (13) but need not endorse a homosexual lifestyle as legitimate, nor afford gay persons the same protection against invidious discrimination granted to those identified by race or sex. Writing this time for an outright majority, Justice Kennedy reaffirmed in Lawrence an opaque and controversial statement made by the plurality in Planned Parenthood v. Casey, that the Court's "obligation is to define the liberty of all, not to mandate [its] own moral code." (14) Without making any judgments about the rightness or wrongness of Lawrence's reasoning or holding, this Article scrutinizes what follows from taking Justice Kennedy at his word. I conclude that, subject to the inevitable retroactive tinkering of the common law, (15) the character-based retributive rationale for capital punishment that the doctrine presently employs does not survive scrutiny under Lawrence because it is not character-neutral. That is, it depends intimately and therefore impermissibly on judgments about the punishment-worthiness of an individual's defining moral characteristics.

The Article proceeds as follows. Part I scrutinizes Lawrence itself in an effort to identify a nonarbitrary principle that justifies its result. Unless the holding is sui generis, Lawrence may be justified by one of at least two broad, competing rationalizations. The first is the one Justice Scalia suggests in dissent, namely that the state may not criminalize "morals" offenses, such as incest or public nudity. (16) This rationale, grounded as it is in an overtly libertarian live-and-let-live ethic, would read into the Constitution some form of John Stuart Mill's "harm principle," the notion that an individual has an absolute right to perform either self-regarding acts or consensual acts affecting others. (17) Section I.A rejects this view of Lawrence, and Section I.B argues for a second, more narrow, rationale for its holding--the proposition that conduct agreed by social consensus to be "status-definitional" cannot be punished for morality's sake. Punishment, that is, may be moral, but it must be impersonal. I term the right to remain free of government interference with one's transcendent identity a right to "metaprivacy."

Part II attempts to harmonize my reading of Lawrence with the existing doctrinal and theoretical landscape. Section II.A traces the evolution of metaprivacy within the tort privacy, Fourth Amendment privacy, and fundamental-decision privacy cases. Section II.B situates metaprivacy within the academic literature on privacy. I ultimately argue that refusing to read into the doctrine a distinction between homosexual conduct and certain other forms of a priori criminal conduct is consistent with a gradual shift in our understanding of liberty toward a government of presumptively limited powers.

Part III connects Lawrence's conception of metaprivacy to the particular form of retributive punishment countenanced by present capital punishment doctrine. Section III.A explains, in doctrinal terms, the elusive concept of retribution and argues that retributive punishment in action involves impermissible judgments about the content of the condemned's constitutive commitments, and is therefore susceptible to attack under the principles of Lawrence-style metaprivacy. Section III.B responds to some anticipated objections to extending metaprivacy principles into the capital sentencing thicket. The Article ultimately theorizes Lawrence's most defensible working principle, then hypothesizes an end point for that principle that lies beyond the bedroom walls. It will be for present and future courts and polities to determine whether this is heartening or dangerous territory.

1. LAWRENCE V. TEXAS AND METAPRIVACY

   In September 1998, officers of the Harris County Police Department entered a private residence in the Houston area to investigate a report of an armed intruder breaking into a home. (18) Upon entering the home, the officers witnessed John Geddes Lawrence and Tyron Garner engaged in anal sex. The two men were arrested, charged, and convicted of violating section 21.06(a) of the Texas Penal Code, which prohibited "deviate sexual intercourse" with someone of the same sex. (19) The case on appeal concerned the constitutionality of the statute under the Fourteenth Amendment. Lawrence's incontrovertible result was that Texas's prohibition on same-sex sodomy violated the Due Process Clause, and that Bowers v. Hardwick was wrong, both in methodology and in outcome, the day it was decided. (20)

   Lawrence is otherwise famously obtuse. An extraordinary number of commentators have weighed in on its holding and we...