An Unanswered Question in Kennedy v. Louisiana: How Should the Supreme Court Determine the Constitutionality of the Death Penalty for Espionage?

• Author: Sarah Frances
• Pages: 995-1021

The author owes many thanks to Professor Linda Carter for her insight, guidance, and enthusiasm throughout the writing of this Note. The author would also like to thank her parents, Tom and Mary, and her siblings, Jonathan, Anna, and Thomas, for their support and encouragement.

Page 995

I Introduction

The terrorist attacks of September 11, 2001, forever changed both the international and domestic landscapes of United States security efforts. With the erosion of the national sense of security, the American military adapted to meet the new challenges of insurgent warfare in Afghanistan and Iraq. Likewise, the creation of the Department of Homeland Security and the enactment of the U.S.A. Patriot Act signaled a turning point in American domestic security strategies-strategies that required not only closer surveillance within the national borders, but also further scrutiny of the actions of U.S. citizens.

These internal security efforts often exposed acts of espionage and betrayal by U.S. citizens. In 2001, Brian Patrick Regan worked for the National Reconnaissance Office (NRO), an agency that maintained reconnaissance satellites.¹ He used his security clearance to search the NRO's classified computer network for information about the military efforts of Iran, Iraq, China, and Libya.² Regan planned to sell data to these foreign governments,³but he was arrested at Dulles International Airport near Washington, D.C., on his way to Europe.⁴ The FBI found coded information and the addresses of Chinese and Iraqi foreign embassies in Regan's pockets and shoes.⁵ His computer contained letters to the governments of Iraq and Libya, in which Regan offered to sell national secrets about these States' missile systems for $13 million.⁶ Regan was charged with three counts of Page 996 attempted espionage,⁷ and the United States Attorney's Office sought the death penalty.⁸ The damaging effect of Regan's attempt to transfer the secret information was disputed at trial,⁹ and the jury sentenced him to life imprisonment instead of capital punishment.¹⁰ If he had been given the death penalty, Regan would have been the first person executed for espionage in the United States since Julius and Ethel Rosenberg were put to death for conspiring to transmit secrets to the former Soviet Union in 1953.¹¹

Espionage, attempted espionage, and conspiracy to commit espionage are punishable by death under 18 U.S.C. § 794¹² and the sentencing guidelines of 18 U.S.C. §§ 3591-3598, also known as the Federal Death Penalty Act (FDPA).¹³ The constitutionality of this penalty under the Eighth Amendment, however, has never been directly addressed.

Despite the lack of jurisprudence on the death penalty for espionage, prosecutions for the crime are common. The Department of Justice reports espionage convictions and plea agreements,¹⁴ and national intelligence agencies research and record espionage trends and developments.¹⁵ Although national security concerns can discourage prosecutors from pursuing the death penalty, the "political determination to execute spies remains Page 997 strong."¹⁶ In the aftermath of September 11, the prosecution of spies will likely continue to be a national priority.

The jurisprudence interpreting the constitutionality of capital punishment for non-homicide crimes against individuals may determine the constitutionality of future espionage executions. In June 2008, the United States Supreme Court considered the constitutionality of the death penalty for the rape of a child in Kennedy v. Louisiana.¹⁷ The Court noted that the Eighth Amendment protection against "cruel and unusual punishment"¹⁸is based on the principle of "proportionality" and should be interpreted according to the "evolving standards of decency that mark the progress of a maturing society."¹⁹ The Court then applied a two-pronged test to make this determination.²⁰ Under the first prong, the Court reviewed objective evidence of a national consensus on the acceptability of capital punishment for child rape.²¹ Through the second prong, the Court applied its independent judgment of the Eighth Amendment's "text, history, meaning, and purpose," including the purposes of punishment and the degree of culpability of the crime.²²

Following this two-pronged analysis, the Kennedy Court held that "the death penalty is not a proportional punishment for the rape of a child."²³ Moreover, the Court explicitly limited this holding to crimes against individuals, stating, "We do not address, for example, crimes defining and punishing treason, espionage, [and] terrorism . . . which are offenses against the State."²⁴ This raises the question of which constitutional test should be applied to the death penalty analysis for espionage and other crimes against the State. If Regan had been given the death penalty, instead of life imprisonment, for attempted espionage and appealed his sentence, Page 998 how would the Supreme Court have analyzed the constitutional claim?

This Note explores this unanswered question in Kennedy to determine whether the Court's two-pronged test can be applied to the death penalty analysis for espionage. Although the Court in Kennedy noted that treason and terrorism are also offenses against the State,²⁵ this Note considers only espionage prosecutions because they are becoming more prevalent "in lieu of the procedurally more demanding charge of treason."²⁶ Part II discusses the history of espionage, the lack of jurisprudence on the constitutionality of espionage executions, and the jurisprudence that developed the two-pronged test applied in Kennedy. Part III examines the Kennedy opinion and the Supreme Court's determination of the unconstitutionality of the death penalty for child rape. Part IV describes the conceptual differences between crimes against the State, such as espionage, and crimes against individuals, such as child rape, that may restrict the application of the Kennedy test to capital punishment jurisprudence for espionage. Part V analyzes why-despite these seemingly conceptual differences between crimes against the State and crimes against individuals-the Kennedy test can, and should, be applied to the death penalty analysis for espionage. Part VI concludes and stresses the necessity for jurisprudential overlap between Kennedy and espionage executions.

II Background: Establishing A Foundation

A Espionage: Ancient Roots, Current Trends, and Unclear Future

Espionage is "the practice of using spies to collect information about what another government or company is doing or plans to do."²⁷ The ancient Egyptian, Greek, and Roman civilizations used Page 999 espionage to maintain political control of their empires.²⁸ After the collapse of the Roman Empire, treason and espionage laws of the Middle Ages promoted allegiance to feudal lords.²⁹ When European nations formally developed during the Renaissance, espionage was employed to combat internal and external threats to the government or monarchy.³⁰ Espionage was later used to end anti-colonial rebellions as these European nations expanded their colonial empires.³¹ In the Industrial Revolution, the use of espionage shifted, and governments began to spy on internal political and labor organizations.³² Finally, improvements in photography, transportation, and communication in the 1800s ushered in the modern espionage era and its emphasis on research and analysis of intelligence information.³³

Current espionage statutes in the United States focus on the need for internal national security and punish those who threaten it. As 18 U.S.C. § 794 states, capital punishment or imprisonment shall be imposed on one who:

With intent or reason to believe that it is to be used to the injury of the United States or to the advantage of a foreign nation, communicates, delivers, or transmits, . . . to any foreign government, or to any faction or party or military or naval force within a foreign country, whether recognized or unrecognized by the United States, or to any representative, officer, agent, employee, subject, or citizen thereof, either directly or indirectly, any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, note, instrument, appliance, or information relating to the national defense . . . .³⁴

Attempts to transmit such information³⁵ and conspiracies to violate the statute³⁶ also are punishable by death or imprisonment. Various Page 1000 other federal statutes further define the facets of espionage in the United States.³⁷

While prosecutors can also pursue the death penalty through a conviction under the Treason Clause of the United States Constitution, the scope of this crime is more limited.³⁸ Treason is the only crime defined in the Constitution, and its roots date back to English law.³⁹ After...