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April 20, 2008

Hoping (foolishly?) that the Chief uses Kennedy to transform Eighth Amendment jurisprudence

"The Eighth Amendment is a jurisprudential train wreck" is how Benjamin Wittes justifiably started this terrific article, entitled, "What is cruel and unusual?", appearing in the December 2005-January 2006 issue of Policy Review.   I basically agreed then, and still agree now, with this attack by Wittes on modern Eighth Amendment jurisprudence:

The Supreme Court's case law has left the amendment without coherent meaning.  No principle guides its reach.  No methodology solemnly pronounced in any case do the justices predictably follow in the next.  A punishment upheld today can be, without alteration, struck down tomorrow with no justice even admitting that his or her mind has changed.  The justices no longer even pretend to examine whether a punishment offends the amendment's textual prohibition. Instead they apply perhaps the single most impressionistic test ever devised by the court: whether the challenged practice has run afoul of "the evolving standards of decency that mark the progress of a maturing society."  Unsurprisingly, nine judges of wildly different politics, temperaments, and backgrounds do not generally agree on the standards or the methodology for assessing society's maturation, much less its substance.

For this reason (and some others), I have been hoping (as suggested here) that Chief Justice Roberts might come to the Court with some fresh ideas for a stale and rotting jurisprudence.  Consequently, I was very excited to read the oral argument transcript in the Kennedy child rape case to discover that the Chief was a very active questioner.  From the transcript, I got the impression that the Chief is troubled by the Court's standard state-counting approach to "evolving standards of decency" most recently applied in Atkins and Roper.

In addition, because I believe it is valuable and important to distinguish between offense conduct and offender characteristics in all areas of sentencing jurisprudence (as explained in this Stanford L. Rev. article), I was especially excited to see the Chief exploring an offense/offender distinction for Eighth Amendment adjudication (see tr. at pp. 19-20).  I very much like the idea that the Justices ought to be very deferential to legislatures concerning what offenses merit harsh punishments, but much less deferential as to what offenders merit harsh punishment.  I am hoping (perhaps foolishly) that the Chief will use the Kennedy case as an opportunity to try to re-engineer Eighth Amendment jurisprudence along these lines.

April 20, 2008 at 03:01 PM | Permalink

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Comments

I would like to comment on your statement that the court should be "much less deferential as what offenders merit harsh punishment."

In some ways, I am even more of an advocate for the offense/offender characteristic dichotomony than you are. I believe that there should be a bright line rule that no offender characteristic can serve to make a def eligible for death, although offender characteristics can serve during the death selection process. (using the terminology that Justice Scalia prefers in Brown v Sanders). Under Ring, capital murder is a greater crime than basic murder. As Justice Souter said in the Kennedy oral argument the aggravator which serves the narrowing function is in reality an element of a greater crime.

In the United States, we have a longstanding tradition that who someone is cannot serve as a basis for convicting someone of a crime (e.g. the bill of attainder clause)

I believe that only characteristics of the crime and characteristics of the victim can serve to narrow the class of intentional killers of ordinary people to the class of people eligible for death. As Justice Scalia says in Kennedy, a crime of intentionally killing a policeman needs no further narrowing.

This is not to say that characteristics of the offender, like recidivism, cannot serve as selection factors. But I disagree with Justice Scalia when he says that recidivism can serve as the single aggravating factor making a child rapist eligible for death. Recidivism is an offender characteristic, which I think means that it cannot be used alone to convict someone of a crime greater than child rape.

I have long subscribed to your notion of offense/offender characteristics, and elevate it to constitutional proportions with respect to the use of the characteristic as the narrowing element, aka the aggravating factor, aka the element of the crime greater than intentional murder of an ordinary person or, maybe, child rape.

bruce

Posted by: | Apr 20, 2008 11:34:54 PM

I think you're expecting Roberts to transform the Court's Eighth Amendment jurisprudence more than one man, even a Chief Justice, can do.

After all, this is the same Chief Justice who said he'd like to see more unanimous opinions, and look at the fractured mess the Court produced in Baze. The Chief was no doubt unhappy, but there's very little he can do without his colleagues' cooperation.

Posted by: Marc Shepherd | Apr 21, 2008 11:44:34 AM

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