Another one of the arguments Kennedy put forward was that the Constitution forbids the imposition of capital punishment in any non-homicide crime—in all types of crime, that is, where no one’s life is lost. Although it might have some intuitive appeal, that proposition directly contradicts criminal laws across the country. Indeed, at the time the case was argued, non-homicide crimes that state and federal criminal codes made eligible for the death penalty included child rape; treason; aggravated kidnapping; drug trafficking; aircraft hijacking; espionage; aggravated assault by incarcerated, persistent felons; and attempting, authorizing, or advising the killing of any officer, juror, or a witness in a case involving a continuing criminal enterprise.
Of those non-homicide crimes, treason stands out because it is the only crime defined in the text of the Constitution—in Article III, Section 3—and the Constitution explicitly confers on Congress the “Power to declare the Punishment of Treason.” Under that constitutional authority, a congressional enactment authorizing the death penalty for treason has been in continuous effect since 1790. To this day, it is enacted in the U.S. Code at 18 U.S.C. § 2381.
Also central to Kennedy’s argument was his contention that there was an “evolving national consensus” against the death penalty for child rape because it was no longer permitted in many states. At the oral argument, there was one particularly notable exchange. Justice John Paul Stevens asked if, in the course of the history of criminal jurisprudence, standards of punishment had ever evolved in any direction other than greater lenience. As it so happened, I had an example to point to. In the thirteenth century, under Saxon law operating at the time in medieval England, the punishment for rape had been lessened from capital punishment to merely removing the culprit’s eyes and the testicles.
At this point in oral argument, I committed the same error in judgment I had made at the Van Orden Fifth Circuit Court of Appeals oral argument: I attempted humor. I quipped that the reduction in punishment from death to just removing the eyes and testicles was “William the Conqueror’s kinder, gentler version” of English common-law justice. Once again, the justices showed mercy and laughed heartily.
But I continued reading from famed legal scholar and English common lawyer William Blackstone, who noted that the lessened punishment didn’t work: “that previous lenity being productive of the most terrible consequences, it was subsequently necessary to return to making it a capital offense.”
Unfortunately, at the end of the day, the Supreme Court went the other way. By a vote of 5–4, the Court struck down Louisiana’s law and every other law in the country providing for capital punishment for the very worst child rapists. Justice Kennedy agreed with the arguments of Patrick Kennedy and authored the majority opinion, in which he concluded that “evolving standards of decency” empowered the Court to strike down these laws. He further opined that there was an objective “national consensus” against capital punishment for child rape.
After the case was decided, it was discovered that not only had six state legislatures explicitly disagreed, but so had both the Congress of the United States and the president of the United States. Federal law, namely the Uniform Code of Military Justice, provided explicitly for capital punishment for child rape when such a horrendous crime was committed in a military context. The underlying legislation authorizing that Uniform Code of Military Justice article had passed Congress by an overwhelming majority.
Rape in the military context had long been punishable by death, at least since the 1863 Army Articles of War. In 2006, Congress separated the rape provision into several subsections and explicitly made child rape punishable by the death penalty. The Department of Defense had advocated that revision and specifically pointed to the Louisiana child-rape law as an example. That federal law passed the House (as part of a much larger package) by a vote of 374–71, and it passed the Senate by voice vote. President George W. Bush signed it, and he issued an executive order specifically implementing the child-rape provision.
These facts were demonstrably contrary to the conclusion of five justices that—in 2008, just two years later—there was some sort of “national consensus” against capital punishment for child rape. Unfortunately, prior to the decision, this federal law eluded everyone’s research. Much to my frustration, neither I nor the lawyers in my office had uncovered it prior to argument. But Louisiana had also failed to discover it, as did all nine justices, and all ten briefs filed in the Court had failed to point it out. Critically, the U.S. solicitor general, who is expressly charged with defending the constitutionality of the laws of the United States, also did not discover it, and so chose not to participate in the case or present any argument to defend the underlying federal law.
When the federal law was uncovered—in a military-law blog post, of all places, after the opinion had been issued—I assisted Louisiana in filing a petition for rehearing and helped recruit a prominent Supreme Court advocate (and future Obama solicitor general) to file it on their behalf. Unfortunately, the Court had already made up its mind, so the fact that recently enacted federal law conclusively disproved the supposed objective “national consensus” did not change their underlying legal conclusion.
At the end of the day, death-penalty cases remain highly contested and highly controversial. Within the federal courts, they are still deeply politicized, as illustrated powerfully by another claim that federal courts have entertained, called a Lackey claim. In that underlying 1995 case, Lackey v. Texas, another convicted murderer who had appealed his case over and over and over again, delaying the imposition of his sentence for seventeen years, argued that it was now unconstitutional to carry out the sentence because it was so delayed. At the time, both Justice Stevens and Justice Breyer had suggested that such a claim might have merit.
My former boss, Judge J. Michael Luttig, who served on the Fourth Circuit Court of Appeals, was perhaps
