In Coker, the court paid special attention to the fact that 49 states didn't have the death penalty for rape. At least some of the argument in Kennedy also focused on this question. Here's my question for the Court: Why should we care? Why are the laws of the states particularly helpful in deciding what is "cruel and unusual"?
Here's two problems with consulting the states:
First, the laws of the states might be shaped by the Court's decisions more than by evolving attitudes. States might create laws not because they think they're "decent," but because they want to shape a law that won't get struck down by the Court. So, for example, states might pass laws that make death unavailable for all rapists, because it thinks Coker applies when the victim is a child, and not just when the victim is an adult.
Second, states might make decisions about their criminal law based on considerations completely divorced from what is "cruel and unusual," or even what is "decent." An execution in California costs $109 million a head. If a state legislature banned the death penalty for financial reasons, it doesn't say a lot about whether it considers the penalty "cruel and unusual."
Decisions to ban a punishment based on either of these considerations might, of course, make the punishment objectively more "unusual." If fewer states are killing people for crime X, it's less usual, whatever the reason. But it isn't necessarily more cruel. And the Eighth Amendment demands both.
When the Court is deciding whether a punishment is "cruel," the criminal law of the states seem at best substantially removed from the question at hand.
It might be more sensible (if somewhat unorthodox) for the Court just to take a poll.
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A fine point, Vern.
You make a really interesting observation about states' motivations. Some states may not want to move in the direction of executing more offenders because of the sheer financial cost, to say nothing of moral standards.
Many states have commissioned reports to determine the cost of the death penalty. Tennessee is a good example. A few years back, the Tennessee Comptroller released a report on the cost of the death penalty to that state. He went on to recommend more stringent guidelines re when the death penalty should be sought, as it varied widely from county to county, with some DA's seeking the death penalty in any first degree murder case, and other DA's saving it for the most heinous crimes. The desire to develop a standardized process for determining whether or not to seek the death penalty was not motivated by any "evolving standards of decency", but rather, by a desire to save money.
Suggesting that states do not allow the death penalty for certain crimes or seek to limit its use solely as a result of some purely moral calculus denies the other factors that clearly weigh in the states' considerations.
On another note....
This comes from someone who is - in fact - morally opposed to the death penalty. In my view, it is all just personal morality dressed up with policy and legal arguments to render it somehow more palitable as public law. This may not be entirely lucid, but I'll try to explain. I am against the death penalty. That's it. That's all. My stance is not necessarily logical. It's just how I feel. That's what Justice Stevens really wants to say. He just abhors capital punishment. But he cannot say that. The law is not about his feelings. It's about reasoned elaboration. So he, no doubt, reaches into his legal took-kit and offers an the argument that capital punishment is - in all of its applications - a cruel and unusual punishment which contravenes the 8th Amendment. This is just his own private, moral outrage dressed up as something logical and reasoned.
I guess this is just what we have to do. We have to dress up our private morals.
In the case that sparked this discussion, the defendant's lawyers feel the same way as Stevens. They abhor the death penalty. So they make some argument about evolving standards of decency. The public argument for the private moral sentiment. In my view, they made the wrong argument about some bogus national consensus, resting on logic that we've already called into question. The argument that serves as the cover to their private moral outrage is rather flimsy. They went moral.
They should have focused their argument on the law being over broad or vague or the risk of the law being inappropriately applied, need for consideration of mitigating circumstances, evidenitary burdens, difficulty with child testimony, etc.
I can certainly see Roberts or Scalia - who probably want Kennedy to fry - writing a decision that strikes down the Louisiana statute because it lacks certain safeguards. Probably because their respective concepts of morality or legal ethics demand those safeguards in the interest of fairness... because in the interest of protecting the individual against the state, we must ensure that where the penalty is death, we take those precautions. Were those safeguards in place, and had the Louisiana legislature taken pains to more carefully construct the statute in question, we would likely find Scalia et al making the same type of moral argument advanced by Stevens or by Kennedy's lawyers... but simply on the other side. A "he should fry" morality, presented to the world as states' rights, trend toward execution of child rapists being more important than a shoddy consensus, judicial activism, textualism, you don't like then repeal it... etc.
I am simply saying that these evolving standards of decency... It's not really what society thinks... Stevens isn't concerned with that... Kennedy's lawyers aren't concerned with that... Scalia isn't concerned with that. It's private morality. Yes, we derive this in large part from our society, from our culture, from our communities... but, in the end, it is our personal morality. And in capital cases, we'll dress it up and make whatever arguments we think will win the day.
All right, I'll take your argument on. (Also, my regular posting begins today.)
I'm not entirely sure where I stand on the Coker / Kennedy issues, and am ambivalent at best about the death penalty as a whole, but I think the "consulting the states is problematic" argument is itself problematic.
First, I don't think it's clear that the states are trying to construct statutes that are going to work within the Coker system. The average legislator is not truly bound by some SCOTUS theory -- he's bound (if at all) only by the imperatives of his constituency. If his constituency thinks Coker is a crock, which is true for most districts in this country, then he's likely to (a) take Coker into consideration and then (b) disregard it in favor of what he thinks is right. It's certainly true that any SCOTUS precedent is going to have some sort of chilling effect on pushing the envelope, God knows, but we shouldn't overestimate that effect. Legislators are in no real sense bound by SCOTUS and have made that quite apparent over the years. (I have very little faith in legislatures, but I do have faith that they'll do their damnedest to get around any SCOTUS decisions they seriously dislike. And if they aren't trying to do so, it means they don't really care, so SCOTUS was probably close enough to the correct answer for government work.)
Second, your financial point is theoretically valid, but, I suspect, subject to the same kind of argument as above. It does cost a prohibitive amount of money to execute a prisoner, but states still try their damnedest anyway. (Especially Texas.) Again, “law & order” pressure from constituents generally means that few state legislators, except those from the most granola of districts, are going to actively oppose the death penalty even on the grounds that it may be crippling the state to litigate the convictions (which accounts, I presume, for most of the cost). Opposing the death penalty on financial grounds makes a lot of sense in a perfect law & economics calculus, but very little sense once you get the silent and not-so-silent majorities involved. While a state might conceivably ban the death penalty for reasons other than “cruel and unusual” or “decency” concerns, I doubt that any actually have. More likely, they might establish a (de jure or de facto) moratorium for financial reasons, but not actually abolish it.
[NB – I'm merely posting a comment, so I'm claiming the privilege to make unfounded assertions. If you can find data that suggests that states who have banned the death penalty have done so for financial reasons, then I will bow and concede the point.]
Setting those quibbles aside, I generally agree with you. If SCOTUS is going to infer a particular intent to the states' actions, they need to be much clearer about it (and perhaps call Zogby). Otherwise, they should just go ahead and decide what is or isn't cruel and unusual on their own. Stuck in the middle, they're essentially doing what Scalia rants about all the time – pulling in random, unsubstantiated data and inferring intent from it.
Of course, that's pretty much par for the course for criminal law.
Interesting counterarguments, Brian. Since we're posting without data, here's my unsubstantiated suggestion:
If States didn't feel constrained by their interpretation of Coker as banning the death penalty for rape, it would be available for CHILD RAPE in considerably more than 5 states.
This is unsubstantiated, but I think it's a pretty good bet, especially in the South.
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