Justice Alito accurately summed up the overwhelming moral and emotional arguments against the U.S. Supreme Court’s recent holding in Kennedy v. Louisiana. Few crimes, if any, so shock the conscience as the rape of a child. Few offenders seem less deserving of mercy than those who rape a child, while arguably no other victim has been so wronged or violated as the young victim. Truly, any argument for sparing child rapists that is based on an appeal to mercy or human compassion is destined to fail in modern society. That is why it was essential for Justice Kennedy’s majority opinion to accurately reflect and build upon the Court’s existing death-penalty jurisprudence when it invalidated Louisiana’s child-rape statute.
Unfortunately for those who disagree with the very principle of capital punishment, Justice Kennedy singularly failed at this task. That he was unable to craft a persuasive argument to counter the understandable. visceral antipathy that crimes against defenseless children generate is However, his tortured interpretation manipulating Supreme Court death-penalty precedent set his decision–and, potentially, subsequent attempts to limit the application of capital punishment–on shaky ground.
Admittedly, the Supreme Court’s death-penalty jurisprudence has been modified and altered over the years since the Court’s first aborted attempt to abolish the practice in Furman v. Georgia. But throughout the intervening years, an ever-shifting Court has returned again and again to our “evolving standards of decency.” This concept, though elusive of strict definition, has provided an overarching principle by which all Eighth Amendment questions have been resolved. Justices opposed to capital punishment have used the “evolving standards” argument to deem death an unconstitutional penalty for certain crimes and offenders, while those seeking to retain the practice have shown how capital punishment as an institution still comports with “evolving standards.”
In his majority opinion, Justice Kennedy fundamentally redefined “evolving standards of decency” so as to render the concept nearly meaningless. In so doing, he has relegated to the dustbin the strongest argument for abolishing the death penalty for child rapists within the Court’s accepted precedent. In its place, Justice Kennedy has relied more strongly on the theory, first pronounced in Coker v. Georgia, that the Eighth Amendment requires the Court to bring its “own judgment” to bear on the permissibility of capital punishment in particular situations. This formulation is an inadequate and inherently less justifiable substitute for the “evolving standards” concept and only renders Justice Kennedy’s arguments more tenuous.
This Note analyzes Justice Kennedy’s reasoning in Kennedy v. Louisiana and argues that, despite leading to the correct outcome, it is fundamentally flawed.
