The issue in Kennedy vs. Louisiana was whether it was unconstitutional to execute someone for raping, but not killing, a child. My opinion? Hmmmm.
I have a variety of thoughts on this topic. I'm a defense attorney, and a former social worker for abused and neglected children, and did an internship with incarcerated youth, and worked with kids in an educational setting. I've done a variety of jobs with kids, and with law, and some with both. When I was a social worker, I remember a coworker of mine saying, "Why put kids in foster care? They'd be better off if we took them out back and shot them." I was appalled, as a newly minted Bachelor of Social Work, and regarded my coworker's comment with disgust. How dare she say such a thing! It didn't take long for me to see that, although hyperbolic, she might be on to something. Kids were being abused in foster care, or being put into facilities or foster homes that weren't providing these kids any sort of nurturing or care. The fact was, ripping them from the only dysfunctional household they knew and putting them in a new dysfunctional setting with strangers was not the solution to the problem. Hell, putting them into a functional relationship with strangers wasn't always the solution, either. (Who saw "Gone Baby Gone"?)
But what I also saw was the type of impact and the long term effects of abuse and neglect on a child's development. The most severe behaviors were often present in children who had been sexually abused or exposed to inappropriate sexual behavior. When I fled social work for law school, I left with the impression that there could be no greater harm to a child than sexual abuse. It messed them up so bad that I thought that maybe my coworker's seemingly appalling comment was true in more ways than one.
That's not to say that kids can't recover, that kids can't cope, that they're all doomed. There are strong, functional human beings out there who are survivors of child sexual abuse. But I can't shake the impression that the children who were most troubled were the ones who had been sexually abused. So that's my feeling about child sexual abuse.
With respect to the death penalty: I am against the death penalty. There are a variety of reasons. My opinions began to form in high school, when I was assigned to write a report on the death penalty. When I started the report, I was for it - when I finished the report, I was against it. I was most influenced by the estimated percentage of people on death row or executed who were at some point later exonerated. Then in college I began learning about social stratification, and the influence of race and class on punishment, and the gaping disparities in "justice." Then in the real world, I realized that I wouldn't trust my government to do any damned thing right that actually mattered, and I don't think my government has any business killing its citizens. So my opposition to the death penalty is based on the likelihood of error, the likelihood that marginalized groups of people are more likely to receive the penalty, and my utter distrust of government and bureaucracy.
Understanding from whence I come, let's turn now to the issue at hand - is the death penalty an appropriate penalty for the crime of child sexual assault? I read a few amici briefs, and when it was released I read the opinion of the US Supreme Court. Social workers submitted a brief, indicating that it was generally in a child's best interest that child sexual abuse NOT be punishable by rape. The social workers pointed out that it provides perpetrators with an incentive to kill - if you're going to be executed for raping, why not go ahead and kill the only witness against you? It'll be the same sentence. The brief also discussed the continuing victimization of a child witness who has to testify, probably more than once, against a person who is probably related to them, and faces execution. I don't really believe that the death penalty acts as a deterrent; however, I was most interested in the discussions in that brief. I'm pleased to see that the Louisiana public defenders put in a simple brief - simply put, they absolutely would not have the resources to provide effective assistance of counsel if every child rape was death-eligible.
The opinion itself was not a good one, in my opinion. It reminded me of Kennedy's opinion in Lawrence v. Texas, and more recently, Kennedy's opinion on abortion restrictions. Not so much law, mostly just talking about feelings. In the TX sodomy case and in the abortion case, there was potential to use and strengthen an existing legal framework, and Kennedy did not. The Louisiana child rape case was an equally unhelpful opinion, but what makes it different is that Eighth Amendment jurisprudence is like jello. What kind of 'legal standard' is "evolving standards of decency?" Or "proportionate sentencing"? These are hardly standards. So really, what else can Kennedy do except talk about "How do we feel about this?" When Kennedy is talking about feelings about the Eighth Amendment, it seems to be precisely what the law demands.
In the end, the Supreme Court decides that our feelings as a nation say this isn't a good punishment for that crime. I don't think that's really what the Supreme Court said. I think the Supreme Court said that we don't like the death penalty very much at all, so there isn't much reason to keep it in a case like that. I suppose they were being narrowly tailored to only decide the case in front of them, but I wish they had just done what they said - strike it all down because we don't like it so much anymore. I don't like when the Supreme Court takes on the role of deciding what we want or what's best for us - I think it's patronizing, and if I can't trust my government to kill someone I don't know if I trust my government to decide when it's capable of killing someone - unfortunately, that's precisely the type of decision that Eighth Amendment jurisprudence demands with respect to the "evolving standards of decency" decision.
But what about whether it is proportionate? Is murder worse than rape of a child? I can't say that I believe that. I don't really recall how the Supreme Court decided that issue. I'm sure that everyone would prefer to have their child alive instead of dead. However, the consequences of living through trauma like that can be staggering and irreversible, as I saw in my time as a social worker. With respect to whether the punishment is proportionate to the crime, I don't know that the Supreme Court got it right.
For all that the opinion said and didn't say, I didn't like it. However, I can't say that I think the Supreme Court, legally, got it wrong. Or right. I just don't know that there was an easy way to answer the question. I respect the Court for not punting, and finding some procedural appellate error that could have been used to avoid the death penalty issue. It's a hard question, and I don't think there's a good legal answer to it. Maybe that means it shouldn't be a legal question, but a legislative one. Nevertheless, the Eighth Amendment makes it a legal question, albeit with not so much law to lead the way.
Those are my thoughts and reflections. What do you think? I'd love to hear your opinion.