Why do we care what the states think?

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.

Update: Kennedy Case Transcript

Transcript Available Here

Child Rape & Evolving Standards of Decency

Louisiana wants to execute Patrick Kennedy for the violent rape of his 8-year-old daughter. Though I may be a card-carrying liberal who has long been critical of the death penalty, I cannot deny my lack of moral outrage or concern over a state’s desire to dispose of a 300lb man who brutally raped his own child. I cannot deny harboring the sentiment that, if there ever was such a time for the death penalty, then surely this is it. Certainly, I never could have sat on Kennedy’s jury, because I could never see it as my place to decide who lived and who died. But if someone else wants to kill Patrick Kennedy, I am admittedly equivocal. As terrible as this sounds, murder sometimes happens. It happens accidentally. It happens in self defense. It often happens where the killer never truly intended such a tragic outcome. Rape, however, does not merely happen. Rape is not an accident. Rape is not self defense. Rape is never the tragic, unforeseen result of some fight or argument gone bad. A grown man who rapes his own daughter does so with complete knowledge of what he is doing. Perhaps this is why the execution of Patrick Kennedy doesn’t bother me nearly as much as the execution of certain convicted murders does. My sentiments aside, his case will reach the Court for oral arguments on Wednesday.

Many opponents of the death penalty – and Kennedy’s lawyers - suggest that the “evolving standards of decency” argument clearly militates in their favor: only five states allow the death penalty for the crime of child rape. The limited number of states where child rapists can be executed is not dispositive, but owes, rather, to post-Coker confusion. In Coker, the court ruled that the death penalty was a disproportionately severe – and hence, unconstitutional – punishment for a convicted felon who raped an adult woman. Many states assumed that Coker foreclosed the prospect of passing legislation under which rapists would be death eligible. Coker, however, dealt with the rape of an adult woman. Indeed, Justice White’s decision repeatedly returns to the phrase “rape of an adult woman.” Coker did not pose the question of whether or not the death penalty was an appropriate punishment for rape of an 8-year old child. As such, several states, Louisiana included, have concluded that there is room, even in this post-Coker world, for a statute that allows for execution of child rapists. If I recall correctly, no states had a child-rapist death penalty statute in 1990. Now, five states have such a law. Missouri has filed an amicus brief asking the court not to foreclose a national debate on the issue of capital punishment for child rapists. This does not go so far as to suggest that our evolving standards of decency favor executing child rapists, but rather, that neither side can claim that argument as a trump.

Kennedy’s case cannot be decided based on the Coker precedent. The facts of the situation are easily distinguishable from the aforementioned. The case will, indeed, include a lengthy discussion of our evolving standards of decency ala Roper v. Simmons and Atkins v. Virginia. There will be some wrangling over whether or not America should consider the jurisprudence of other nations in our discussions of the constitutionality of our death penalty. Though doubtful, the court may consider how such laws make it more likely that child rapists will – sensing they have nothing left to lose – murder their victims. Possibly, the court will strike down the law as vague or overbroad, in that it allows the death penalty for anyone who rapes a child under 13....whereas anyone who murders a child is not instantly death eligible without proceeding through a lengthy balancing of aggravating factors and mitigating circumstances. Our murder/death penalty jurisprudence is well developed. Our child rape/death penalty jurisprudence is not. In other words, the law may lack appropriate safeguards to ensure that it is narrowly applied and only in appropriate circumstances. Because the Louisiana law does not include such checks against its application, the Court may – in a 5-4 decision – rule it unconstitutional.