Kennedy and the Tail of Minos

• Author: J. Richard Broughton
• Position: Visiting Assistant Professor of Law, Wayne State University Law School
• Pages: 593-626

Visiting Assistant Professor of Law, Wayne State University Law School. This Artricle also makes reference to some capital litigation in which I participated as a lawyer at the U.S. Department of Justice. The Article does not, however, contain or rely upon any nonpublic information. I am grateful to Wendy for her support, and thankful for Blair, who was born during the writing of this Article.

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I Introduction

In Dante's Inferno, Minos sat as the ultimate judge of human sin.¹ Dante explains in Canto V that when the damned appeared in Hell, they would confess their sins to Minos, who would then wrap his tail around his body.² The circle to which the soul was assigned was determined by the number of times that Minos wrapped his tail.³ Dante's recognition of Minos in this role was no accident: Minos, son of Zeus and Europa and king of Crete, was known as a wise and just ruler and lawgiver,⁴ and his role as a leading judge in the Underworld is described by Virgil⁵ (who guides Dante's main character through Hell in the Inferno).

Dante's description of the punishment in Hell and the procedure for receiving it provides important lessons for us with respect to the definition and administration of the criminal law. Of course, it reminds us that punishment matters, that who and to what extent we punish tells us about our morality, humanity, and our commitment to safeguarding the political community. It reminds us, too, that punishment matters to our politics because political institutions must be capable of controlling the people;⁶ Page 594 criminal and penal legislation are manifestations of that effort. Depriving human beings of their freedom and sometimes their lives is a tragic but necessary responsibility of the state. In this sense, Dante reminds us that it matters who determines criminal punishment and how it is determined. That question has special significance for American government and politics because its resolution sits squarely at the intersection of constitutionalism and criminal justice: in the effort to control both the governed and those who govern (as our system contemplates), to what extent should the punishment decisions of judicial actors and institutions take priority over the punishment decisions of political actors and institutions?

These concerns about whom, why, and how we punish and about the political considerations that attend the challenge of violent crime in America have particular force in the debate about both the death penalty and particular applications of it as well as the Supreme Court's role in regulating it. The Supreme Court's recent decision in Kennedy v. Louisiana⁷ concerning the constitutionality of Louisiana's capital child rape statute demonstrates the force of these concerns about what punishment is appropriate and who should make the determination about its propriety. In light of the Court's aggressive posture in favoring claims of categorical exemption from capital punishment, it is still useful to ask: has our Constitution entrusted the Court to act as a kind of contemporary Minos? Kennedy (the opinion authored for the Court by-to make the matter somewhat more confusing to discuss-Justice Kennedy) struck down the statute, which had been consistently upheld by the Louisiana Supreme Court⁸ as violating the Eighth Amendment's ban on cruel and unusual punishments. The statute provided the death penalty for aggravated rape of a child under the age of thirteen.⁹ The United States Page 595 military, Georgia, Montana, Oklahoma, South Carolina, and Texas all have similar statutes.¹⁰

In the Louisiana case, Patrick Kennedy was convicted under this statute in 2003 for brutally raping his eight-year-old stepdaughter.¹¹ Kennedy challenged the law under the Court's Page 596 1977 decision in Coker v. Georgia,¹² in which a plurality of the Court held that the death penalty was grossly disproportionate for the crime of raping an adult woman. Justice Powell's separate opinion questioned whether the death penalty could ever be proportionate for rape, including the rape of a child.¹³ Answering that question, the Court in Kennedy held that the Louisiana statute failed to satisfy the two-pronged analysis that the Court has developed for Eighth Amendment cases in which the defendant seeks a categorical exemption from the imposition of capital punishment.¹⁴ First, there is an existing national consensus against the practice of employing the death penalty in civilian cases of child rape.¹⁵ And second, in the Court's own independent judgment, rape-even the rape of a child-does not compare with murder in terms of the individual harm that it produces.¹⁶Therefore, the death penalty is disproportionate for the rape of a child prosecuted in civilian court and for all civilian crimes against the person that do not result in the death of the victim.¹⁷

At its core, Kennedy is a case about relative resulting harms, in particular the comparative harm between murder and child rape. But it also raises questions about the authority of the Supreme Court to judge for itself the gravity of violent crimes against the person and to rethink the acceptability of severe criminal punishments for them.

Whether one supports or opposes the death penalty for the aggravated rape of a child, there can be little doubt that there remains great value in continuing our national dialogue about punishment by death. It matters. Kennedy offers a particularly rich opportunity for dialogue, especially for constitutional and criminal law scholarship. Consequently, rather than spend much time on the (admittedly important) substantive question of whether the death penalty should be permissible for the crime of aggravated child rape, this Article instead offers three distinct but related normative observations, leading to one overarching conclusion about the Kennedy decision and the Court's categorical exemption jurisprudence. First, Kennedy is essentially a case about comparative resulting harm among violent crimes. The Kennedy dissent should have offered a more robust attack on the Court's two-pronged capital Eighth Amendment methodology, which Page 597 undervalues legitimate penological justifications for capital punishment (particularly retributive ones based on considerations of harm, both social and individual) and ultimately constitutionalizes public policy preferences in the form of a kind of judge-made Death Penalty Code. Under that Code, the Court acts as the ultimate arbiter of offense seriousness, public morality, and the political acceptability of capital punishment. Second, the Court's attempt to limit its holding is illusory. This is so because Kennedy's loose rhetoric and underdeveloped harm theory could jeopardize the constitutionality of any statute that permits the imposition of the death penalty for a non-homicide crime, including crimes against the state and even unintentional murders that fail to satisfy the Court's own sensibilities about harm. Finally, Kennedy demonstrates that there remains both relevance and legitimacy in the debate over the scope and exercise of judicial power, particularly when the exercise of judicial power undermines the community's reasoned response to the problem of violent crime. Questions about the nature of judicial review are not and ought not to be mutually exclusive of the substantive debate about the meaning of the Eighth Amendment. Ultimately, the Court's approach to its categorical exemption jurisprudence reflects the Court's assumption of its role as a kind of modern day tail-wrapping Minos, not so much fixing punishment, but nonetheless determining for the Nation the gravity of harm inflicted by a particular crime and the acceptability of capital punishment for it.

II Kennedy, Harm, and the Failures of the Consensus- Independent Judgment Methodology

Kennedy is premised upon a two-pronged analytical framework for judging whether to exempt from the imposition of capital punishment a particular crime or category of offenders. But there is inherent tension in this approach. The Court has said that it looks first at objective indicia of public attitudes about the particular practice at issue (legislative enactments, jury decisions, prosecutorial practices) to determine whether a national consensus exists regarding that practice,¹⁸ but that "in the end, our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment."¹⁹ Page 598 These two lines of analysis seem to be incompatible; at a minimum, one of the prongs is superfluous.²⁰

With regard to the first prong of this methodology, the Kennedy opinion traces the historical development of capital rape statutes, noting that in 1925 eighteen states, the District of Columbia, and federal law authorized the death penalty for rape.²¹After Furman v. Georgia²² invalidated most of these laws, six states re-enacted capital rape legislation; however, all of those statutes were subsequently invalidated either by the Court's 1976 capital cases or by state court decisions.²³ Louisiana re-enacted its capital child rape statute in 1995, and Georgia, Montana, Oklahoma, South Carolina, Texas, and the military (as part of the Uniform Code of Military Justice) followed.²⁴ Comparing this recent trend to the ones found in Atkins v. Virginia, ²⁵ Roper v. Simmons²⁶ and Enmundv. Florida²⁷ the Court concluded that the trend was not significant enough to establish a national consensus favoring the practice. The Court also rejected the contention that many states specifically declined to enact such legislation not because the political community opposed it, but because the legislatures...