Louisiana Law Review Volume 69|Number 3 Spring 2009 Kennedy and the Tail of Minos J. Richardson Broughton Repository Citation J. Richardson Broughton,Kennedy and the Tail of Minos, 69 La. L. Rev. (2009) Available at: https://digitalcommons.law.lsu.edu/lalrev/vol69/iss3/4 This Article is brought to you for free and open access by the Law Reviews and Journals at LSU Law Digital Commons. It has been accepted for inclusion in Louisiana Law Review by an authorized editor of LSU Law Digital Commons. For more information, please [email protected]. Kennedy and the Tail of Minos J RichardB roughton* I. INTRODUCTION In Dante's Inferno, Minos sat as the ultimate judge of human sin.' Dante explains in Canto V that when the damned appeared in Hell, they would confess their sins to Minos, who would then wrap his tail around his body.2 The circle to which the soul was assigned was determined by the number of times that Minos wrapped his tail.3 Dante's recognition of Minos in this role was no accident: Minos, son of Zeus and Europa and king of Crete, was known as a wise and just ruler and lawgiver,4 and his role as a leading judge in the Underworld is described by Virgil5 (who guides Dante's main character through Hell in the Inferno). Dante's description of the punishment in Hell and the procedure for receiving it provides important lessons for us with respect to the definition and administration of the criminal law. Of course, it reminds us that punishment matters, that who and to what extent we punish tells us about our morality, humanity, and our commitment to safeguarding the political community. It reminds us, too, that punishment matters to our politics because political institutions must be capable of controlling the people;6 Copyright 2009, by J. RICHARD BROUGHTON. * Visiting Assistant Professor of Law, Wayne State University Law School. This Artricle also makes reference to some capital litigation in which I participated as a lawyer at the U.S. Department of Justice. The Article does not, however, contain or rely upon any nonpublic information. I am grateful to Wendy for her support, and thankful for Blair, who was born during the writing of this Article. 1. DANTE ALIGHIERI, INFERNO 41 (Allen Mandelbaum trans., 1980) (1308). 2. Id. ("There dreadful Minos stands, gnashing his teeth:/examining the sins of those who enter,/he judges and assigns as his tail twines./I mean that when the spirit born to evil/appears before him it confesses all;/and he, the connoisseur of sin, can tell/the depth in Hell appropriate to it"). 3. Id. ("[A]s many times as Minos wraps his tail/around himself, that marks the sinner's level."). 4. See PIERRE GRIMAL, THE DICTIONARY OF CLASSICAL MYTHOLOGY 275- 76 (Stephen Kershaw ed., 1991) (1951). It is interesting that Minos is introduced in Canto V at the entrance to the Circle that contains the lustful. Minos, in addition to his reputation as a lawgiver, was also known to have numerous mistresses which led Pasiphae, his wife, to curse him (the curse was then lifted by Procris, whom he tried to seduce). Id. 5. See VIRGIL, THE AENEID 139 (Harlan Hoge Ballard trans., 1930). 6. See THE FEDERALIST No. 51, at 322 (James Madison) (Clinton Rossiter ed., 1961). See also J. Richard Broughton, The Second Death of Capital LOUISIANA LAW REVIEW [Vol. 69 criminal and penal legislation are manifestations of that effort. Depriving human beings of their freedom and sometimes their lives is a tragic but necessary responsibility of the state. In this sense, Dante reminds us that it matters who determines criminal punishment and how it is determined. That question has special significance for American government and politics because its resolution sits squarely at the intersection of constitutionalism and criminal justice: in the effort to control both the governed and those who govern (as our system contemplates), to what extent should the punishment decisions of judicial actors and institutions take priority over the punishment decisions of political actors and institutions? These concerns about whom, why, and how we punish and about the political considerations that attend the challenge of violent crime in America have particular force in the debate about both the death penalty and particular applications of it as well as the Supreme Court's role in regulating it. The Supreme Court's recent decision in Kennedy v. Louisiana7 concerning the constitutionality of Louisiana's capital child rape statute demonstrates the force of these concerns about what punishment is appropriate and who should make the determination about its propriety. In light of the Court's aggressive posture in favoring claims of categorical exemption from capital punishment, it is still useful to ask: has our Constitution entrusted the Court to act as a kind of contemporary Minos? Kennedy (the opinion authored for the Court by-to make the matter somewhat more confusing to discuss-Justice Kennedy) struck down the statute, which had been consistently upheld by the Louisiana Supreme Court8 as violating the Eighth Amendment's ban on cruel and unusual punishments. The statute provided the death penalty for aggravated rape of a child under the age of thirteen.9 The United States Punishment, 58 FLA. L. REV. 639, 662 (2006) (discussing Madison's observation that government must first control the governed, then control itself). 7. 128 S. Ct. 2641 (2008). 8. Kennedy v. Louisiana, 957 So. 2d 757 (La. 2007), rev'd, 128 S. Ct. 2641 (2008). See also State v. Wilson, 685 So. 2d 1063 (La. 1996), cert. denied Bethley v. Louisiana, 520 U.S. 1259 (1997) (upholding constitutionality of capital child rape statute). 9. LA. REV. STAT. ANN. § 14:42 (2007). A substantial body of scholarship exists concerning the Louisiana capital child rape statute and on the subject more broadly. See, e.g., J. Richard Broughton, "On Horror's Head Horrors Accumulate": A Reflective Comment on Capital Child Rape Legislation, 39 DUQ. L. REV. 1 (2000); Annaliese Flynn Fleming, Louisiana's Newest Capital Crime: The Death Penalty for Child Rape, 89 J. CRIM. L. & CRIMINOLOGY 717 (1999); James H.S. Levine, Creole and Unusual Punishment-A Tenth 2009] KENNEDY AND THE TAIL OF MINOS 595 military, Georgia, Montana, Oklahoma, South Carolina, and Texas 0 all have similar statutes.' In the Louisiana case, Patrick Kennedy was convicted under this statute in 2003 for brutally raping his eight-year-old stepdaughter.'" Kennedy challenged the law under the Court's Anniversary Examination of Louisiana'sC apital Rape Statute, 51 VILE. L. REV. 417 (2006); Melissa Meister, Murdering Innocence: The Constitutionality of Capital Child Rape Statutes, 45 ARIZ. L. REV. 197 (2003); Emily Marie Moeller, Devolving Standards of Decency: Using the Death Penalty to Punish Child Rapists, 102 DICK. L. REV. 621 (1998); Corey Rayburn, Better Dead Than R(ap)ed?: The PatriarchaRl hetoric Driving CapitalC hild Rape Statutes, 78 ST. JOHN'S L. REV. 1119 (2004); Joanna H. D'Avella, Note, Death Row for Child Rape? Cruel and Unusual Punishment Under the Roper-Atkins "Evolving Standards of Decency" Framework,9 2 CORNELL L. REV. 129 (2006). 10. See National Defense Authorization Act for the Fiscal Year 2006, Pub. L.No. 109-163, 119 Stat. 3136, 3263 (2006); GA. CODE ANN. § 16-6-1(a)(1)-(2) (2003); MONT. CODE ANN. § 45-5-303 (2007); OKLA. STAT. ANN. tit. 10, § 7115(E) (West 2007); S.C. CODE ANN. § 16-3-655(C)(I) (Supp. 2007); TEX. PENAL CODE § 12.42(c)(3) (West Supp. 2008). Some controversy in the Kennedy litigation concerned the omission-by the Court and the parties-of the UCMJ provision, known as section 552(b) of the National Defense Authorization Act of 2006, making child rape a capital offense. The State filed a petition for rehearing, and the United States joined in the request as amicus curiae. The omission resulted in requests from commentators that the Court correct its error. See, e.g., Editorial, Supreme Slip- Up, WASH. POST, July 5, 2008, at A14 (arguing that the Court grant rehearing); Laurence H. Tribe, The Supreme Court is Wrong on the Death Penalty, WALL ST. J., July 31, 2008, at A13 (arguing that the Court wrongly decided the case). On October 1, 2008, the Court modified the opinion, adding a footnote concluding that the UCMJ provision did not alter the Court's original national consensus analysis. See Kennedy v. Louisiana, 128 S.C t 2641, 2653 n. (2008). Justices Kennedy and Scalia issued separate statements regarding the Court's holding. 11. Kennedy, 128 S.C t. at 2646-48. According to the evidence presented at trial, when police arrived at Kennedy's home, the stepdaughter, L.H., was found wrapped in a bloody blanket and was bleeding profusely from her vagina. Her cervix and vagina had been separated as a result of the rape, such that her rectum protruded into her vagina; her injuries required emergency surgery. A pediatric forensic expert testified that her injuries were "the most severe he had seen from a sexual assault in his four years of practice." Id.a t 2646. L.H. initially did not implicate Kennedy in the crime, and Kennedy denied his own involvement. After L.H. returned home to her mother on June 22, 1998, following a period of removal from the mother's custody, L.H. told her mother that Kennedy had raped her. Kennedy was arrested and charged under the capital rape statute after L.H. gave a videotaped statement with the Child Advocacy Center. At trial L.H. recounted the rape, and said she overheard Kennedy on the telephone saying she had "become a 'young lady."' Id.a t 2648. She admitted that she had initially falsely accused two neighborhood boys of the crime. The evidence presented at trial also showed that Kennedy sexually abused another eight-year-old girl, S.L. (who is related to Kennedy's ex-wife), on three occasions. 596 LOUISIANA LA W REVIEW [Vol. 69 1977 decision in Coker v. Georgia,12 in which a plurality of the Court held that the death penalty was grossly disproportionate for the crime of raping an adult woman. Justice Powell's separate opinion questioned whether the death penalty could ever be proportionate for rape, including the rape of a child.'3 Answering that question, the Court in Kennedy held that the Louisiana statute failed to satisfy the two-pronged analysis that the Court has developed for Eighth Amendment cases in which the defendant seeks a cate orical exemption from the imposition of capital punishment.1 First, there is an existing national consensus against the practice of employing the death penalty in civilian cases of child rape. And second, in the Court's own independent judgment, rape--even the rape of a child-does not compare with murder in terms of the individual harm that it produces.16 Therefore, the death penalty is disproportionate for the rape of a child prosecuted in civilian court and for all civilian crimes against the person that do not result in the death of the victim.17 At its core, Kennedy is a case about relative resulting harms, in particular the comparative harm between murder and child rape. But it also raises questions about the authority of the Supreme Court to judge for itself the gravity of violent crimes against the person and to rethink the acceptability of severe criminal punishments for them. Whether one supports or opposes the death penalty for the aggravated rape of a child, there can be little doubt that there remains great value in continuing our national dialogue about punishment by death. It matters. Kennedy offers a particularly rich opportunity for dialogue, especially for constitutional and criminal law scholarship. Consequently, rather than spend much time on the (admittedly important) substantive question of whether the death penalty should be permissible for the crime of aggravated child rape, this Article instead offers three distinct but related normative observations, leading to one overarching conclusion about the Kennedy decision and the Court's categorical exemption jurisprudence. First, Kennedy is essentially a case about comparative resulting harm among violent crimes. The Kennedy dissent should have offered a more robust attack on the Court's two-pronged capital Eighth Amendment methodology, which 12. 433 U.S. 584 (1977). 13. Id. at 604 (Powell, J., concurring in part and dissenting in part). 14. Kennedy, 128 S.Ct. at 2650-51. 15. Id.a t 2652-53. 16. Id. at 2659-60. 17. Id.a t 2660. 2009] KENNEDY AND THE TAIL OF MINOS undervalues legitimate penological justifications for capital punishment (particularly retributive ones based on considerations of harm, both social and individual) and ultimately constitutionalizes public policy preferences in the form of a kind of judge-made Death Penalty Code. Under that Code, the Court acts as the ultimate arbiter of offense seriousness, public morality, and the political acceptability of capital punishment. Second, the Court's attempt to limit its holding is illusory. This is so because Kennedy's loose rhetoric and underdeveloped harm theory could jeopardize the constitutionality of any statute that permits the imposition of the death penalty for a non-homicide crime, including crimes against the state and even unintentional murders that fail to satisfy the Court's own sensibilities about harm. Finally, Kennedy demonstrates that there remains both relevance and legitimacy in the debate over the scope and exercise of judicial power, particularly when the exercise of judicial power undermines the community's reasoned response to the problem of violent crime. Questions about the nature of judicial review are not and ought not to be mutually exclusive of the substantive debate about the meaning of the Eighth Amendment. Ultimately, the Court's approach to its categorical exemption jurisprudence reflects the Court's assumption of its role as a kind of modem day tail- wrapping Minos, not so much fixing punishment, but nonetheless determining for the Nation the gravity of harm inflicted by a particular crime and the acceptability of capital punishment for it. II. KENNEDY, HARM, AND THE FAILURES OF THE CONSENSUS- INDEPENDENT JUDGMENT METHODOLOGY Kennedy is premised upon a two-pronged analytical framework for judging whether to exempt from the imposition of capital punishment a particular crime or category of offenders. But there is inherent tension in this approach. The Court has said that it looks first at objective indicia of public attitudes about the particular practice at issue (legislative enactments, jury decisions, prosecutorial practices) to determine whether a national consensus exists regarding that practice,' 8 but that "in the end, our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment."''9 18. See Roper v. Simmons, 543 U.S. 551, 564-67 (2005); Atkins v. Virginia, 536 U.S. 304, 314-17 (2002). 19. Roper, 543 U.S. at 563 (citing Atkins, 536 U.S. at 312 (quoting Coker v. Georgia, 433 U.S. 584, 597 (1977))). LOUISIANA LA W REVIEW [Vol. 69 These two lines of analysis seem to be incompatible; at a minimum, one of the prongs is superfluous.20 With regard to the first prong of this methodology, the Kennedy opinion traces the historical development of capital rape statutes, noting that in 1925 eighteen states, the District of Columbia, and federal law authorized the death penalty for rape.21 After Furman v. Georgia22 invalidated most of these laws, six states re-enacted capital rape legislation; however, all of those statutes were subsequently invalidated either by the Court's 1976 capital cases or by state court decisions.23 Louisiana re-enacted its capital child rape statute in 1995, and Georgia, Montana, Oklahoma, South Carolina, Texas, and the military (as part of the Uniform Code of Military Justice) followed.4 Comparing this recent trend to the ones found in Atkins v. Virginia, Roper v. Simmons,26 and Enmund v. Florida2,7 the Court concluded that the trend was not significant enough to establish a national consensus favoring the practice. The Court also rejected the contention that many states specifically declined to enact such legislation not because the political community opposed it, but because the legislatures erroneously believed that Coker prohibite2d8 the death penalty for all rapes, including the rape of a child. Although Coker contained some ambiguous language, the Court conceded, when viewed in the appropriate context, that Coker announced a 20. See Broughton, supra note 6, at 651. 21. Kennedy, 128 S. Ct. at 2651. 22. 408 U.S. 238 (1972). 23. Kennedy, 128 S.C t. at 2651. 24. Id. Again, the Court originally failed to cite the UCMJ provision, section 552(b) of the National Defense Authorization Act of 2006. See id.a t 2653 n. Justice Kennedy's separate statement regarding the denial of rehearing, however, argued that the UCMJ provision was not relevant to the Court's national consensus analysis, which was limited to the civilian law context. Id. (statement of Kennedy, J.). 25. 536 U.S. 304 (2002). At the time of the Atkins decision, eighteen capital jurisdictions forbade the death penalty for the mentally retarded, and twenty permitted it. 26. 543 U.S. 551 (2005). At the time of the Roper decision, eighteen capital jurisdictions forbade the death penalty for juvenile offenders, and twenty permitted it. 27. 458 U.S. 782 (1982). At the time of the Enmund decision, eight jurisdictions permitted the death penalty for participation in a robbery that resulted in a murder committed by an accomplice. Enmund's rule was subsequently modified by Tison v. Arizona, 481 U.S. 137 (1987), which held that the culpability mandate of Edmund could be satisfied where the offender engages in major participation in a felony and demonstrates reckless indifference to human life. 28. Kennedy, 128 S.C t. at 2653-56. 2009] KENNEDY AND THE TAIL OF MINOS 599 more limited holding, applying only to the rape of an adult 29 woman. Kennedy completes its national consensus analysis by stating that positive legislation is not the only indicia of societal attitudes toward the execution of child rapists.30 In addition, the Court explains, it matters that no one has been executed for the rape of an adult or a child since 1964, and no one has been executed for a non-homicide offense since 1963.31 Kennedy and Richard Davis (who was also recently convicted in Louisiana for the aggravated rape of a child) were the only two people currently on death row in the Nation for non-homicide crimes.32 Consequently, the Court concludes, when these figures are combined with the paucity of state or federal legislation making the rape of a child a capital crime, there is a national consensus against capital punishment for 33 child rape. Then, in part IV of the Court's opinion, Justice Kennedy explains that the analysis of the objective indicia of societal attitudes related to the capital punishment of child rapists is but a starting point, and not a dispositive basis for decision. Rather, "in the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment., 34 As applied in Kennedy, this is essentially a proportionality analysis that depends upon a comparison between the harms caused by murder and child rape. Although the Kennedy Court (unlike the Coker Court) does not attempt to minimize the individual harms inflicted by the rape of a child--"the attack was not just on [the victim] but on her childhood,"35 "[r]ape has a permanent psychological, emotional, and sometimes physical impact on the child," 6 "[w]e cannot dismiss the years of long anguish that must be endured by the victim of child rape"37-Kennedy nevertheless concludes, as did 29. Id. at 2654 ("Confined to [the Coker passage about rape generally] Coker's analysis of the Eighth Amendment is susceptible of a reading that would prohibit making child rape a capital offense. In context, however, Coker's holding was narrower than some of its language read in isolation."). 30. Id. at 2657. 31. Id. 32. Id. 33. Id. at 2657-58. 34. Id. at 2658 (quoting Coker v. Georgia, 433 U.S. 584, 597 (1977)). 35. Id. 36. Id. 37. Id. Others have discussed the harm done by rape, particularly child rape, and I have been critical of the Coker Court's minimization of those harms. See SUSAN ESTRICH, REAL RAPE (Harvard Univ. Press 1987); Broughton, supra note 600 LOUISIANA LA W REVIEW [Vol. 69 Coker, that rape (like all non-homicide crimes against the person) does not compare with murder in terms of the individual harm it produces.38 The relevant distinction concerns the taking of a human life, an act that the Court deems unique in terms of "severity and irrevocability."39 Here the Court does not hesitate to follow Coker's reasoning, explaining that jt]he murderer kills; the rapist, if no more than that, does not ...'., The Court defends its proportionality analysis by noting the significance of "the number of executions that would be allowed" if the Court followed Louisiana's approach.4' The Court explains that child rape occurs more than first-degree murder and thus could be punished with death more often." Therefore, it would be inconsistent with the Nation's evolving standards of decency and the Court's avowed mission to limit the use of capital punishment to allow the death penalty for child rape.43 The Court concludes its excessiveness discussion by explaining why its conclusion is consistent with the retributive and deterrent goals of punishment.44 In response, Justice Alito's Kennedy dissent is persuasive on many fronts. It offers a compelling response to the majority's national consensus analysis and demonstrates why capital child rape legislation can just as adequately narrow the class of death- eligible offenders as statutory sentencing procedures for capital murder.45 Justice Alito demonstrates that a number of state courts and legislators actually read or could have read Coker to apply to all rapes, not merely to the rape of an adult woman.46 Providing examples from a number of jurisdictions, he concludes, "the Coker dicta gave state legislatures a strong incentive not to push for the enactment of new capital child-rape laws even though these legislators and their constituents may have believed that the laws would be appropriate and desirable.'47 He also notes that in the five additional jurisdictions that were considering capital child rape 9, at 35-38; Owen D. Jones, Sex, Culture, and the Biology of Rape: Toward Explanation and Prevention, 87 CAL. L. REv. 827 (1999). 38. Kennedy, 128 S. Ct. at 2659-60. 39. Id.a t 2659, 2660 (quoting Coker, 433 U.S. at 598). 40. Id.a t 2654 (quoting Coker, 433 U.S. at 598). The Coker dissent rejected the plurality's understanding of the harm caused by rape. See Coker, 433 U.S. at 611-12 (Burger, C.J., dissenting). 41. Kennedy, 128 S. Ct. at 2660. 42. Id. 43. Id. 44. Id.a t 2662-64. 45. Id.a t 2665-71, 2673-74 (Alito, J., dissenting). 46. Id.a t 2665-71. 47. Id.a t 2668. 2009] KENNEDY AND THE TAIL OF MINOS legislation recently but failed to enact it; such failure occurred only after the grant of certiorari in Kennedy, and nothing in the record indicates that the legislatures refused to pass the legislation because they viewed it as offensive to social standards of decency. Although Justice Alito is reluctant to conclude that a national consensus unquestionably exists in favor of the practice of imposing the death penalty for child rape, he nonetheless acknowledges that society's moral standards could be evolving toward harsher punishment for child rapists, not away from it." The Court, though, deprives the democratic process of its capacity for demonstrating whether our society desires a move in that direction. The Alito dissent mirrors the Coker dissent insofar as it accepts both broader retributive and utilitarian justifications for capital child rape statutes. Both Coker and Kennedy, though, assert what appear to be primarily retributive bases for applying a categorical exemption for the respective rapes in those cases based on a finding of disproportionality, though the harm analysis adds a touch of utilitarianism.50 However, the retributive theory of Kennedy and Coker (indeed, the Court's entire proportionality theory in these cases) is arguably too narrow.51 Moreover, even if 48. Id.a t 2671. 49. Id.a t 2672-73. 50. My own sense is that Kennedy and Coker remain primarily retributive. The harm assessment is prominent but does not really concern the prevention of future harm (classical deterrence)--rather, it is an evaluation of how the harm caused relates to the offender's deserved punishment. This has led to a description of the Court's capital proportionality jurisprudence as "limiting retributivism." See, e.g., Richard S. Frase, Excessive Prison Sentences, Punishment Goals, and the Eighth Amendment: "Proportionality"R elative to What?, 89 MINN. L. REV. 571, 591 (2005); Richard S. Frase, The Warren Court's Missed Opportunities in Substantive CriminalL aw, 3 OHIO ST. J. GRIM. L. 75, 96 (2005). See also NORVAL MORRIS, MADNESS AND THE CRIMINAL LAW 182-87, 196-202 (Univ. of Chicago Press 1982) (explaining the principle of "limiting retributivism" as recognizing an outer limit on desert). Alice Ristroph has argued for an interpretation of the Eighth Amendment that is based on principles of proportionality, but concedes that proportionality is not derived solely or necessarily from retribution. See Alice Ristroph, Proportionalitya s a Principleo f Limited Government, 55 DuKE L.J. 263 (2005). Paul Robinson has also written about the efficacy of hybrid approaches to distributing punishment. See Paul H. Robinson, Hybrid Principles for the Distributiono f CriminalS anctions, 82 NW. U. L. REV. 19 (1987). 51. See Frase, Excessive Prison Sentences, supra note 50, at 588-97 (examining the Court's proportionality jurisprudence under the Eighth Amendment and offering distinct theories of proportionality, concluding that the Court's capital cases tend to employ a "limiting retributivism" understanding of proportionality); Mary Sigler, Contradiction, Coherence, and GuidedD iscretion in the Supreme Court's Capital Sentencing Jurisprudence, 40 AM. CRIM. L.