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June 25, 2008

Some first-cut reactions to Justice Kennedy's work in Kennedy

I am finally getting a chance to read the Kennedy case in full and general reaction will be coming in future posts.  But, as I work through the ruling, and I cannot help wondering aloud about some head-scratching passages in the majority's opinion prohibiting states for making child rape eligible for the sentence of death.  Specifically, I am especially perplexed by the sentence in bold from this paragraph:

Evolving standards of decency must embrace and express respect for the dignity of the person, and the punishment of criminals must conform to that rule. See Trop, supra, at 100 (plurality opinion). As we shall discuss, punishment is justified under one or more of three principal rationales: rehabilitation, deterrence, and retribution. See Harmelin v. Michigan, 501 U. S. 957, 999 (1991) (KENNEDY, J., concurring in part and concurring in judgment); see also Part IV–B, infraIt is the last of these, retribution, that most often can contradict the law’s own ends.  This is of particular concern when the Court interprets the meaning of the Eighth Amendment in capital cases. When the law punishes by death, it risks its own sudden descent into brutality, transgressing the constitutional commitment to decency and restraint.

I genuinely have no idea what this bolded sentence means, and whether it could have meaning/impact in settings beyond capital cases when the Court is applying the Eighth Amendment.  Can anyone help me understand what the heck Justice Kennedy and the others are saying here?

June 25, 2008 at 05:41 PM | Permalink


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As a mere question of what the text of that sentence means in the context of that paragraph, it's pretty simple. He believes that the using retribution as a rationale for punishment can sometimes lead to a descent into brutality. He believes that result contradicts the law's ends, among which he counts decency and restraint.

Posted by: bob jenkins | Jun 25, 2008 5:56:47 PM

I agree with Bob's reading. To extend it slightly: One of law's central ends is to protect us from brutality; when we use retribution as a rationale for punishment, we risk such a descent.

One of the things that's striking about the sentence is how clearly we associate that position with abolitionism in our current political culture. To recognize capital punishment as a brutality of sorts (however justified it may be), is not a perspective one often hears from death penalty supporters.

Posted by: dm | Jun 25, 2008 6:08:56 PM

I think it's more in reference to his later analysis of retribution -- that since the death penalty may incentivize killing the victim, that the law's end - presumably deterrence - is undermined.

Posted by: NewFedClerk | Jun 25, 2008 6:09:19 PM

Retribution is the motive of the barbarian.

Any law which draws upon retribution (to any great extent), maintains and creates barbarism.

Laws are supposed to reduce barbarism.

NLO (Researcher, student and ex-offender).

p.s. thank you for your very useful and interesting blog.

Posted by: Dr Nigel Leigh Oldfield | Jun 25, 2008 6:09:39 PM

P.S. And rarer still is the acknowledgement that a punishment's brutality impacts not only the convict, but also we, the collective, in whose name that punishment is inflicted.

Posted by: dm | Jun 25, 2008 6:15:14 PM

In addition to Kennedy's suspicion of brutality im execution, "the law's own ends" seems to refer to the three goals of punishment mentioned immediately before the bold sentence. He means to say that retribution most often oversteps its bounds and inhibits (maybe) deterrence and (especially) the cause of rehabilitation. Instead of seeking a balance, the other two more noble ends are lost for the sake of vengence.
This could be an assumption wrapped up in the label of brutality, but it seems important to draw it out. Perhaps.

Posted by: i. james | Jun 25, 2008 7:41:36 PM

I read the sentence a bit differently than the other commenters. I think Kennedy is saying that retribution, because it is a deontological theory, often has negative consequences for law. It is a basic point that deontological arguments can have bad utilitarian effects because those arguments don't consider effects. I agree it could be worded with greater precision, but I fundamentally agree with the underlying point as I interpret it.


Posted by: Corey Rayburn Yung | Jun 25, 2008 8:32:53 PM

Deontological moral theory does not ignore consequences, which as Rawls says, would be crazy. It does not, however, allow aggregate consequences (however measured) to serve as the criterion of what we ought to do, all things considered.

Posted by: anon | Jun 25, 2008 9:49:30 PM

Unlike most of the other commentators, I agree with Doug that Kennedy's reasoning is difficult to understand. In the sentences quoted by Doug and elsewhere, he seems to say that "evolving standards of decency" can only ratchet in one direction: less punishment. Really? Cannot a decent society decide in time period 2 that crime X (say, for instance, drunk driving or rape of a child) is worse than the society judged it in time period 1 -- and hence raise punishments? Kennedy tries to limit his anti-punishment theory to the death penalty context, but gives no persuasive rationale for such a limitation. Why is retribution (whatever he means by that term, but surely his understanding includes how "bad" society considers the knowing conduct) only anti-constitutional, as Kennedy argues, in capital cases? His (unstated but implicit) foundational premise is that it is suspect across-the-board. Really? Together with some of his (unnecessary dicta) sentences in Lawrence, one has to ask: What, exactly, does Kennedy think the criminal law (as opposed to tort law or a civil regulatory regime) is about? Is he (and is a majority of the Court, unless they are only joining these opinons to avoid hurt feelings) perhaps heading toward the conclusion that criminal law and criminal punishment are themselves unconstitutional? This is beyond anything Europe has done, though there have long been murmurs to this effect here and abroad.

Posted by: Professor of Law | Jun 25, 2008 10:38:12 PM

Just retribution is supposed to be a proportional or an equivalent response to an offense. There no is general agreement about proportionality or equivalence and someone has to decide (normally it is the legislature) but in this case the supremes said that child rape is not equivalent to homicide. It also seems to me that a DP for child rape would be an unusual punishment.

I guess Justice Kennedy thinks unjust retribution damages the rule of law. If that is the correct interpretation I agree.

Posted by: John Neff | Jun 25, 2008 10:45:43 PM

I don't think Kennedy is saying that "evolving standards of decency" can only ratchet in the direction of less punishment. He insists that the application of the death penalty must be constrained, but that isn't a new principle. He is concerned about arbitrariness:


Evolving standards of decency that mark the progress of a maturing society counsel us to be most hesitant before interpreting the Eighth Amendment to allow the extension of the death penalty, a hesitation that has special force where no life was taken in the commission of the crime. It is an established principle that decency, in its essence, presumes respect for the individual and thus moderation or restraint in the application of capital punishment.

To date the Court has sought to define and implement this principle, for the most part, in cases involving capital murder. One approach has been to insist upon general rules that ensure consistency in determining who receives a death sentence. See California v. Brown, 479 U. S. 538, 541 (1987) (“[D]eath penalty statutes [must] be structured so as to prevent the penalty from being administered in an arbitrary and unpredictable fashion” (citing Gregg, 428 U.S. 153; Furman, 408 U.S. 238)); Godfrey v. Georgia, 446 U.S. 420, 428 (1980) (plurality opinion) (requiring a State to give narrow and precise definition to the aggravating factors that warrant its imposition). At the same time the Court has insisted, to ensure restraint and moderation in use of capital punishment, on judging the “character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death.” Woodson, 428 U. S., at 304 (plurality opinion); Lockett v. Ohio, 438 U.S. 586, 604–605 (1978)(plurality opinion).


Kennedy believes that expanding the death penalty to non-homicide offenses (and by his language it is clear that he takes the practical view that Kennedy is about whether the death penalty will be expanded) will make it more difficult to ensure its fairness, perhaps even to the point where Furman must again control. This, I think, is the meaning of the paragraph Doug quoted. Kennedy is trying to save the American death penalty much like Franklin Roosevelt saved American capitalism. Thankfully, he will ultimately fail.

Posted by: DK | Jun 25, 2008 11:10:43 PM

Ugh, I should have used italics to signify the case and differentiate it from its author to avoid confusion. Why did Kennedy have to write Kennedy? Stevens should have taken it for that reason alone.

Posted by: DK | Jun 25, 2008 11:15:56 PM

My thought is that what Kennedy is saying there is basically a statement about disportionate punishment - saying that it is possible for a punishment to be so severe as to have negative effects. Thus, the possibility that by expanding the death penalty to non-homicide crimes, there will be incentive to kill the victims would make the punishment of death could be counterproductive and thus disportionate to the crime and thus in violation of the 8th Amendment.

Whether this will apply in other cases is a very interesting question - in theory, this point that punishment can be so high as to be counterproductive should apply to several penalties such as effective life sentences for drug dealing while in possession of a firearm - there are plenty of penalties which could be argued provide harm to society due to extreme brutality or being outrageous to the amount of crime (an example might be a real example where I saw a guy get sentenced to 2 years in prison for stealing a candy bar), but thus far the Court and lower courts seem to not provide much sympathy for defendants sentenced to habitual felon laws. I think it might provide some support for your case involving the guy in Utah sentenced for the drug crime, Professor Berman - getting away from the notion of habitual felons, it seems that this ruling might provide an avenue to attack very long sentences for criminal conduct for persons who do not have long criminal records.

Posted by: Zack | Jun 26, 2008 10:09:00 AM

This from a social scientist, not a lawyer: retribution can not be empiricaly researched. No one can say, systematically, if it "works" or not. We either believe--in the fairness of the sentence--or we don't. Therefore, any sentence can be argued, and if public opinion supports it, can not be prevented from being policy.

Posted by: Michael Israel | Jun 26, 2008 1:32:04 PM

[... public opinion supports it, can not be prevented from being policy.]

Since when did public opinon ever (or even should it?) shape policy in a Capitalist society (particularly, in such a biased, corrupt, Capitalist, right-wing society, such as the USA)?


Posted by: Dr Nigel Leigh Oldfield | Jun 26, 2008 5:00:36 PM


I take it that you'd prefer something other than a capitalist society. What would that be?

Posted by: Bill Otis | Jun 26, 2008 7:16:40 PM

Humanist, Environmentalist Socialism.

For now, something like the UK was, a few decades ago, before we were ruined and socially/economically castrated by your practices, systems and Empire building.

However, I need not fear, as Mother Nature is shifting the balance in my favour :)

Actually, I do not believe we have evolved, sufficiently, at this time, to even know what is best for us, as a long-lasting, globally successful species ... so, for now, I will be one of those Humanist, Environmentalist Socialists, as much as you will allow me.

Pip pip.


Posted by: Dr Nigel Leigh Oldfield | Jun 26, 2008 8:48:03 PM


I have no authority to "allow" you to be anything.

Thank you for your direct and prompt response.

Posted by: Bill Otis | Jun 26, 2008 9:18:20 PM

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