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Analysis: The death penalty calculus is unchanged


After a summer of public conversation, and legal argument, the Supreme Court put an end — at least temporarily — to the speculation that it might alter its approach to the constitutionality of the death penalty.  Despite the very unusual (though not unprecedented) alteration of a previously issued opinion, the Court still is committed to a two-step method of deciding whether a death sentence for a given crime violates the Eighth Amendment. If there is anything new about that calculus, is it that military law probably does not count in it.  In fact, the Court left open — as it had before — the question of whether the Eighth Amendment governs the military in the same way it does the civilian community.  That might be tested at some point in the future in a military death penalty case — rare though they are.

But the two-step Eighth Amendment analytical formula the Court has relied on for years remains entirely intact.  The first step is to check for a “national consensus,” canvassing the views of policymakers and legislators at all levels of government.  That does not end the inquiry, however.  The Court, as indicated in the original Kennedy v. Louisiana opinion issued on June 25, assigns “great weight” to such “objective evidence of contemporary values,” but it added that that “does not end our inquiry.”

The second step, then, is for the Court to use its own “independent judgment” — a more-or-less free-standing inquiry “informed” by “our precedents and our own understanding of the Constitution and the rights it secures.”

When the state of Louisiana discovered, through the efforts of others, that the Court had omitted to mention a military law on death sentences for child rape committed by those in uniform, it asked the Court to reconsider. It suggested that this discovery undercut the finding of a “national consensus” against that penalty for that crime.  And, it added, the discovery might also have either undermined the Court’s separate “independent judgment,” or left that as the only remaining basis for striking down that penalty.  Louisiana suggested that it was not appropriate for the Court to rely solely on its own constitutional view.

The Court, on Wednesday, did what the lawyers for Louisiana death-row inmate Patrick Kennedy had suggested in reply to Louisiana’s post-decision challenge: it wrote a footnote, and dropped it into the previously issued opinion.  That footnote took account of the existence of the military law on the subject, then added: “For the reasons set forth in the statement respecting the denial of rehearing,….we find that the military penalty does not affect our reasoning or conclusions.”  (The dissenting opinion from June 25 got a new footnote, too, plus one revision in text.)

That separate statement providing the reasons why rehearing was denied, written by the author of the original opinion, Justice Anthony M. Kennedy and joined by his four colleagues in the June 25 majority, closely tracked the arguments made by Patrick Kennedy’s attorneys in their later brief.  The bottom line, though, was that the military law was distinguished away, and may, in fact, have become nearly irrelevant in judging the death penalty for civilian offenders.

“Authorization of the death penalty in the military sphere,” Justice Kennedy wrote, “does not indicate that the penalty is constitutional in the civilian context.”  Military law has not counted in past rulings on the Eigthth Amendment, the opinion said, and did not count now: “This case, too, involves the application of the Eighth Amendment to civilian law.”

Because the federal government and Louisiana had expressed concern that the Kennedy opinion was so sweeping that it silently invalidated the military penalty, Justice Kennedy on Wednesday — again, embracing a tactic suggested by Patrick Kennedy’s counsel — said it was leaving for another day the issue of whether the military might be able to justify death as a punishment for child rape.

Justice Antonin Scalia, joined by Chief Justice John G. Roberts, Jr., did not vote to grant rehearing; only two Justices did — three short of the number needed.  Justice Scalia said he had not voted to reconsider the case, in the wake of the discovery of the military law, “because the views of the American people on the death penalty for child rape were, to tell the truth, irrelevant to the majority’s decision in this case.”

That decision, Scalia said, actually came down, in the end, to the Court’s use of its own independent judgment — an interpretation that the state of Louisiana, with some trepidation, had said might be put on the ruling if rehearing were not granted.  Scalia went on to argument thast “of course the Constitution contemplates no such thing” as power in the judiciary to apply its own subjective views.  In a sharp thrust, Scalia added that “the proposed Eighth Amendment would have been laughed to scorn [at the Founding] if it had read ‘no criminal penalty shall be imposed which the Supreme Court deems unacceptable.’ “  But, he went on, “that is what the majority opinion said, and there is no reason to believe that absence of a national consensus would provoke second thoughts.”

Even so, the calculus, as understood by Justice Kennedy and the majority, remains now — as before — a two-step proposition, and a canvass of national opinion will continue as the opening step.