Capital Punishment and the Offense

Capital Punishment and the Offense

The three-part method from the previous sections (consensus evidence, then the Court's own weighing of culpability against severity, then the purposes of punishment) now gets applied to the first of two kinds of categorical rule. This kind targets the crime. The question is whether death is disproportionate for an entire class of offenses no matter who commits them, and the cases answer that death is generally unavailable for a crime that did not result, and was not intended to result, in the death of the victim.¹ The second kind of rule is different. In Roper v. Simmons and Atkins v. Virginia the Court barred the execution of juveniles and of persons with intellectual disability because those offenders bear diminished personal responsibility for what they did.² In those cases the bar follows the person, whatever the crime, while in the offense-based cases the bar follows the crime, whoever the person. Asking first what the crime was, and only later who committed it, keeps the two analyses from bleeding into each other.

Three decisions before Kennedy v. Louisiana show how the offense-based line was built. In Coker v. Georgia the Court held it unconstitutional to execute an offender who had raped an adult woman, and it found that both legislatures and juries had firmly rejected death for that crime.³ In Enmund v. Florida the Court overturned the capital sentence of a defendant who aided and abetted a robbery during which a murder was committed but who did not himself kill, attempt to kill, or intend that a killing take place.⁴ Enmund drove the getaway car and lacked a homicidal state of mind, so the crime attributable to him was not one that took or was meant to take a life.⁵ Tison v. Arizona marks the other side of the line: the Court allowed death sentences to stand for defendants who did not themselves kill but whose involvement in the events leading to the murders was active, recklessly indifferent, and substantial.⁶

What separates Enmund from Tison is how close the defendant stood to the killing. Enmund was a minor participant without any intent that lethal force be used, while the Tison defendants were major participants who acted with reckless indifference to human life, and the Court has said that Enmund does not reach that second group.⁷ Students lose this issue when they read the line as turning on who struck the fatal blow, because Tison permits death for a defendant who did not kill when the defendant's own role was substantial and reckless toward life. The cases therefore ask about the defendant's own part in a crime that took a life, and the identity of the person who carried out the killing does not settle the question.

The reason the line follows the taking of life comes from the nature of the penalty. Death is unique in its severity and its irrevocability, so the Court has insisted that it be limited to a narrow category of the most serious crimes and to offenders whose extreme culpability makes them the most deserving of execution.⁸ Murder takes a life, and a penalty that cannot be undone is matched most naturally to the one harm that cannot be undone either. A crime that leaves the victim alive, however grave, falls outside that match. The penalty is not invariably unconstitutional, as Gregg v. Georgia confirms, and the Court's approach is to confine the instances in which it can be imposed rather than to abolish it.⁹ Summaries of where the confinement ends describe death as remaining available for aggravated murder and, at the margins, for treason and for activity that creates a great risk to many people, such as air piracy.¹⁰

The next two sections run the method on the two crimes that test the line. Coker answers the question for the rape of an adult. Kennedy then takes up the question Coker left open, namely which other nonhomicide crimes, if any, may be punished by death, and holds that the Eighth Amendment bars a death sentence for the rape of a child where the crime did not result, and was not intended to result, in the victim's death.¹¹ In each case the Court looked first to objective indicia of consensus and then to its own judgment about culpability, severity, and the purposes of punishment.¹²

Rape of an Adult

The offense-based bar on death was first drawn in Coker v. Georgia, where the Court asked whether a State may execute a person for the rape of an adult woman who survives.¹⁴ The answer looks only at the crime, whoever the offender is, which is the feature that defines the offense-based line. The facts were grave, and the result followed anyway. Coker had escaped from a Georgia prison, where he was serving sentences for murder and other violent crimes, and on the night of the escape he entered the Carver home through an unlocked kitchen door, raped Mrs. Carver, and committed an armed robbery before driving off in the family car.¹⁵

Georgia law let a jury choose among death, life imprisonment, and a prison term of one to twenty years for rape, and it required the jury to find at least one statutory aggravating circumstance before death could be imposed.¹⁶ The jury found two, namely Coker's prior conviction for a capital felony and the commission of the rape in the course of the armed robbery, and it returned a verdict of death on the rape count.¹⁷ The Court took the case on the single claim that death for rape violates the Eighth Amendment, so the decision speaks to that sentence alone.¹⁸ It held that the Amendment bars the death penalty for the rape of an adult woman where the victim does not die, because the penalty is disproportionate to the offense.¹⁹ Justice White's opinion was joined by three other Justices, and Justices Brennan and Marshall concurred only in the judgment, which is why later opinions cite Coker as a plurality opinion.²⁰

The Court worked from the two-part excessiveness test it had settled on in Gregg v. Georgia. A punishment is cruel and unusual if it makes no measurable contribution to acceptable goals of punishment and so amounts to purposeless and needless pain and suffering, or if it is grossly out of proportion to the severity of the crime.²¹ A sanction can fail on either ground, and the opinion states that the death penalty for the rape of an adult woman falls within both.²² The evidence the Court then collects speaks most directly to proportion, so the reasoning that carries the holding compares a penalty that ends a life with a crime that does not.²³

The Court gave weight to what legislatures and juries had actually done because Eighth Amendment judgments should not be, or appear to be, merely the personal views of individual Justices, and attention to history, legislative attitudes, and jury sentencing decisions anchors them in something outside the bench.²⁴ On the legislative side, eighteen States, the District of Columbia, and the federal government authorized death for the rape of an adult woman in 1925, but by the time of decision Georgia was the only jurisdiction that did, and only two other States still authorized death for the rape of a child.²⁵ Juries told the same story. Since 1973, Georgia juries had imposed death only six times in 63 rape convictions appealed to the state supreme court, so in at least nine cases out of ten they chose a lesser sentence.²⁶ Each source records a community judgment in concrete decisions, and when nearly every legislature has withdrawn a penalty and juries that still hold the power decline to use it most of the time, the community has shown that it does not regard death as a fit price for the crime.

That evidence did not end the inquiry. Because death is a unique and irreversible sanction, the Eighth Amendment demands more than that the penalty be acceptable to contemporary society, and the Constitution contemplates that the Court's own judgment will in the end bear on the question.²⁷ Students lose this issue when they stop at the count of States, because the Court's own judgment is the second half of the analysis and carries independent weight. The Court did not play down the crime. Rape is highly reprehensible, and short of homicide it is the “ultimate violation of self.”²⁸ Even so, the Court concluded that death is a disproportionate penalty for the rapist who does not take a human life, because death is unique in its severity and irrevocability.²⁹ The line follows the harm: a taking of life is the one injury that no later correction can repair, and it is the one that a penalty that cannot be undone most naturally answers.

The last step concerns how much weight Georgia's own choice deserves. A legislature's decision about punishment ordinarily receives great deference, because the elected body is the usual place where a community's views about penalties are registered. Here the Court held that, in light of the objective evidence and the severity of the penalty, the Georgia legislature's decision to authorize death for rape was not entitled to the great deference that would otherwise be given.³⁰ The reason follows from what deference assumes. When a legislature's choice stands nearly alone against the practice of every other jurisdiction and the verdicts of juries, the assumption that the choice reflects community judgment is weak, and the cost of error is at its highest because a death sentence cannot be undone.

Applied to Coker's own facts, these steps produce the result the Court reached. The jury imposed death for the rape alone, the victim survived, and the sentence could not stand even though Coker had a prior capital-felony conviction and the jury had found both aggravating circumstances.³¹ The aggravating circumstances answered the question whether a death sentence for rape had been procedurally authorized under Georgia law, and the Eighth Amendment question was whether death could ever be a proportionate penalty for a rape in which the victim lives. Changing a single fact shows where the line sits.

The sentence that stays available for the murder rests on the settled principle that death is not invariably cruel and unusual and is not always disproportionate to the crime for which it is imposed.³² The same contrast appears among defendants who did not do the killing themselves. A participant in a robbery in which a murder occurred, who did not kill or intend to kill but whose involvement in the events leading to the killings was active, recklessly indifferent, and substantial, remains eligible for death under the line of cases exemplified by Tison v. Arizona.³³ In both settings a life was taken in a crime in which the defendant's own role was substantial, and that is the feature missing from a rape in which the victim survives.

Coker spoke only of an adult woman, and when it was decided two other States still authorized death for the rape of a child.³⁴ Whether the same reasoning reaches a child victim is the question the next section takes up.

Rape of a Child

Coker v. Georgia barred death for the rape of an adult woman but left open which, if any, other nonhomicide crimes a State may punish by death.³⁶ The crime that most naturally tests that open question is the rape of a child, and Kennedy v. Louisiana supplied the answer. The Eighth Amendment prohibits a death sentence for the rape of a child where the crime was neither intended to result in, nor did result in, the child's death.³⁷ Those two conditions define the reach of the holding, so the decision governs the nonhomicide case and leaves a crime that takes, or is meant to take, a life to the general limits on capital punishment. That boundary matters again below, when a defendant who shares in a killing is compared with one who raped and did not kill.

The case arose under a Louisiana statute that authorized death for the rape of a child under twelve.³⁸ A jury convicted Patrick Kennedy of the aggravated rape of his then eight-year-old stepdaughter, and after a penalty phase in which another child testified that he had sexually abused her too, the jury unanimously sentenced him to death.³⁹ The Louisiana Supreme Court affirmed, reasoning that Coker's general contrast between murder and rape, together with a changing legislative landscape, did not foreclose death for child rape.⁴⁰ It then asked whether child rapists rank among the worst offenders and answered yes: the crime is severe, execution would serve deterrence and retribution, and, unlike the defendants in Atkins and Roper, Kennedy had no characteristic that lessened his moral culpability.⁴¹ The state's Chief Justice dissented, reading Coker to set a bright-line rule that the Eighth Amendment precludes capital punishment for any offense that does not involve the victim's death.⁴²

The Supreme Court rejected the state court's conclusion by applying the two-step method developed in the preceding sections, and it rested the holding on both steps together.⁴³ The first step asks what objective indicia of society's standards, chiefly legislative enactments and state practice, show about whether the penalty is accepted.⁴⁴ The history was one of retreat. In 1925, eighteen States, the District of Columbia, and the federal government authorized death for the rape of a child or an adult, and 455 people were executed for those crimes between 1930 and 1964, yet to the Court's knowledge the last person executed for the rape of a child died in 1964.⁴⁵ By the time of the decision, few jurisdictions still authorized the penalty and only one State had imposed it since 1964, and Louisiana's own supreme court acknowledged that the State sat in the minority.⁴⁶ These indicia carry weight because legislatures and juries record the community's judgment in concrete decisions, and relying on them ties the inquiry to something outside the Justices' own preferences. A penalty that few legislatures authorize and that almost no one receives has largely ceased to be regarded as a fitting response to the crime.

Consensus does not end the inquiry. Whether death is disproportionate to a crime depends as well on controlling precedent and on the Court's own understanding of the Amendment's text, history, meaning, and purpose.⁴⁷ That second step starts from a limiting principle: capital punishment must be confined to a narrow category of the most serious crimes and to offenders whose extreme culpability makes them the most deserving of execution.⁴⁸ A mechanism sits behind the principle. Retribution is the purpose of punishment most likely to contradict the law's own ends, because a law that punishes by death risks its own descent into brutality, so the Court insists on keeping the instances of execution few.⁴⁹ Measured against that principle, the Court judged that child rape is devastating but is not murder, and a crime that did not take, and was not meant to take, a life falls outside the narrow capital category.⁵⁰ A line at the taking of life is also one that courts can administer. The Louisiana court's question, whether a given crime ranks among the worst, has no natural stopping point, since every grave nonhomicide crime invites the same argument and every wrong answer is a death sentence that cannot be undone.

Students lose this issue when they ask whether the defendant is among the worst offenders, as the Louisiana court did, and treat the absence of an Atkins or Roper type of mitigating trait as the answer. In this setting the bar follows the offense, so the offender's lack of mitigation does not make death proportionate for a rape that neither caused nor was meant to cause death.⁵¹

Four Justices dissented, and their objections mark where the majority's reasoning is contestable. They argued that the count of States understated legislative support for the penalty, because Coker's broad remarks about rape and murder, which went beyond what that case had to decide, discouraged States from enacting capital child-rape statutes, so the sparse state legislation could not be read as clear evidence of a settled public judgment.⁵² They also argued that the majority undervalued the lasting harm that rape inflicts on child victims. Those are the dissent's positions, and the holding remains the majority's.

The holding sits alongside the accomplice cases, and comparing them shows what the line tracks. In Enmund v. Florida the Court overturned the capital sentence of a defendant who aided a robbery during which a murder was committed but did not kill, attempt to kill, or intend a killing, while in Tison v. Arizona it allowed death sentences to stand where the defendants did not themselves kill but their involvement in the events leading to the murders was active, recklessly indifferent, and substantial.⁵³ The wording of the Kennedy holding echoes that line, since it speaks of a rape that did not result in the child's death by one who did not intend to help another kill the child.⁵⁴ Together the cases place death where a life was taken and the defendant's own part in the taking was intentional, or major and recklessly indifferent, and they withhold it where no life was taken or meant to be taken, however grave the crime.

Everything in Kennedy turned on the crime. The next two sections change the question from what crime was committed to who committed it, because for juveniles and persons with intellectual disability the bar follows the person, whatever the offense, due to diminished personal responsibility.⁵⁵