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July 1, 2008

Will Kennedy have any cross-over impact for non-capital cases?

A week after it was handed down, I am now re-reading the Supreme Court's work in the Kennedy child rape case to ponder whether any aspects of the majority's Eighth Amendment holding or dicta might have an impact in non-capital cases. 

As regular readers know, I have always been troubled by the eagerness of the Supreme Court (and some lower courts) to find many constitutional problems with death sentences and yet few constitutional problems with extreme non-capital sentences.  Disappointingly, most parts of the Kennedy ruling have a "death is very different" quality that may keep Kennedy from helping non-capital defendants.  Nevertheless, I think these snippets from the Kennedy majority opinion could and should have some resonnnace in non-capital contexts (all cites/quotes omitted):

The [Eighth] Amendment proscribes all excessive punishments, as well as cruel and unusual punishments that may or may not be excessive [and its] protection against excessive or cruel and unusual punishments flows from the basic precept of justice that punishment for a crime should be graduated and proportioned to the offense.  Whether this requirement has been fulfilled is determined not by the standards that prevailed when the Eighth Amendment was adopted in 1791 but by the norms that currently prevail.  The Amendment draws its meaning from the evolving standards of decency that mark the progress of a maturing society.  This is because the standard of extreme cruelty is not merely descriptive, but necessarily embodies a moral judgment.  The standard itself remains the same, but its applicability must change as the basic mores of society change.  (Kennedy slip op. at 8.)

The constitutional prohibition against excessive or cruel and unusual punishments mandates that the State’s power to punish be exercised within the limits of civilized standards.  (Kennedy slip op. at 24.)

In addition, the Kennedy ruling suggests that, whenever a defendant challenges an authorized punishment under the Eighth Amendment, the judiciary's "own understanding of the Constitution and the rights it secures" must be part of the constitutional analysis.  (Kennedy slip op. at 24).  And, in turn, this appears to require the judiciary to consider "the fundamental, moral distinction between a 'murderer' and [and other crime that] is not like death in its severity and irrevocability."  (Kennedy slip op. at 27.)  Indeed, suggests the Kennedy court, as a matter of constitutional law and Eighth Amendment doctrine, even crimes that "may be devastating in their harm ... cannot be compared to murder."  (Kennedy slip op. at 27.)

If read to be more than just a death penalty ruling, one might reasonably assert that Kennedy's holding or dicta would preclude a jurisdiction from ever punishing a non-murder crime with the same terms it uses to punishes its worst murders.  This, in turn, would mean that Kennedy could raise serious constitutional questions for all sorts of non-homicide LWOP sentences and extremely long prison terms imposed for relatively minor offenses.  Sadly, however, I do not expect many (any?) lower courts to extend the logic of the Kennedy holding and dicta to non-capital settings.

July 1, 2008 at 03:33 PM | Permalink


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Your argument would of course have greater currency if in fact LWOP replaced the death penalty as the ultimate punishment. As I have previously remarked, the existence of the death penalty distorts all else below. The failure to view and organize the sentencing structure as a connected system, in favor of a disconnected colony, is the root cause of many of the problems you identify.

Posted by: peter | Jul 1, 2008 3:53:04 PM

COrrect me if I'm wrong, Professor B, but there isn't really any proportionality jurisprudence outside of DP, is there?

Posted by: Gray Proctor | Jul 1, 2008 5:19:14 PM

At the risk of sounding like former President Clinton, that depends on your definition of "really." See Ewing v. California, 538 U.S. 11 (2003).

Posted by: Kent Scheidegger | Jul 1, 2008 5:41:05 PM

Thanks, Mr. Scheidegger.

Posted by: Gray Proctor | Jul 1, 2008 6:35:13 PM

Gray Proctor,

Yes there is. See the Solem v. Helm, 463 U.S. 277 (1983) section in Richard Frase's Excessive Prison Sentences, Punishment Goals, and the Eighth Amendment: Proportionality Relative To What?, 89 Minn. L. Rev. 571 (2005) (pdf).

Posted by: George | Jul 1, 2008 8:08:38 PM


The proportionality case I remember best is Harmelin v. Michigan, 501 U.S. 957 (1991), in which a splintered Court upheld a mandatory LWOP sentence for selling 672 grams of crack. Scalia and Rehnquist adopted an originalist view. But the key votes were provided in a concurring opinion by Kennedy, with Souter and O'Connor. That opinion allowed for some degree of proportionality review by the courts, but one that was quite deferential to the legislature.

If either Kennedy or Souter retains now the view each took then, a defendant will have a tough road to hoe getting a term-of-years sentence overturned on proportionality grounds.

Harmelin might have been refined in recent years, but it was the prevailing law while I was an AUSA.

Posted by: Bill Otis | Jul 1, 2008 9:45:15 PM

Mr. Otis, Frase covers them all, including Harmelin, and the Court seems to be all over the map. Now that Rehnquist and O'Connor are no longer on the Court, will Roberts and Alito fill their shoes or will they have different opinions?

If I were going to try to set a precedent, I'd a) look to state supreme court rulings on cruel and usual punishment. Have the majority of states found non-death sentences can be cruel and unusual? Might go to bean counting and evolving standards. b) use for a test case someone who did not commit a new offense, but violated a administrative regulation and still got life (25 to life or whatever). c) be sure that same someone does not have a violent history, preferably little criminal history. d) I'd hurry before a Federalist Society lawyer or someone "fights" for a bad case that makes for bad law (and intentionally loses or knows it's a no win).

Posted by: George | Jul 1, 2008 11:19:24 PM


I suspect Roberts and Alito would vote the same as Rehnquist and O'Connor did on this issue. O'Connor's more liberal tendencies were on social questions more than in criminal law, where she remained pretty conservative. Alito is somewhat more conservative, however.

Roberts is not quite as sympathetic to the state as Rehnquist was, but pretty close. (He did after all clerk for Rehnquist).

I had to chuckle when I saw your line about getting there "before a Federalist Society lawyer or someone 'fights' for a bad case that makes for bad law (and intentionally loses or knows it's a no win)."

Although I'm a member of the Federalist Society, I assure you that I'm harmless on this one. I won't be taking any cases to the Supreme Court -- or if I do, it will be a big surprise to me. And if there's a lawyer in this town who would intentionally lose a Supreme Court case, I sure don't know him.

The Federalist Society, incidentally, is anything but a monolith. It has quite a few libertarian lawyers in it, who think my views about drugs are so much baloney.

Posted by: Bill Otis | Jul 1, 2008 11:53:40 PM

Kennedy may not have any cross-over, since the factual underpinnings of the decision are flat-out wrong.

Ha ha.


Posted by: federalist | Jul 2, 2008 6:55:03 AM

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