A Look at Recent Supreme Court Death Penalty Decisions
The Legal Times has completed its seventh annual Supreme Court review. Four expert appellate advocates who are lawyers and have each argued at least one case before the Supreme Court in the last term have analyzed the decisions and trends that emerged and made predictions about what may be expected from the court in the future.
The Supreme Court term that recently wrapped up in June saw a lot of cases in which the justices were in agreement, with fewer closely divided decisions than there had been during the previous session. However, the cases that were most controversial and got the most press were the cases in which the justices were split in their decision, with Justice Anthony Kennedy being the swing vote.
Death penalty cases were a big part of this session. The justices decided that the three-drug procedure for execution by lethal injection was not cruel and unusual punishment, but that executions for child rapists would be. There was a 7-2 decision about the constitutionality of the lethal injection protocol, but in Kennedy vs. Louisiana, there was a split 5-4 decision against the death penalty for child rapists.
Most legal commentary now asserts that the court is now leaning to the right; however, not everyone agrees with that assessment. Appellate lawyer Ted Cruz believes that although there have been changes in the court, there has also been a lot of consistency. When the Supreme Court voted 7-2 to uphold death by lethal injection, many people were surprised that it was not a 5-4 vote, but Cruz says that the decision was not that surprising. The court needed to clarify an issue that had confused and divided the lower courts and they dealt with the issue head on, based on the merits of the case.
In Kennedy vs. Louisiana, the court decided that death for a child rapist was not in line with the evolving standards of decency in the United States. In this case, Cruz says that the court's decision could not be considered overly conservative. The justices looked at the overall national consensus on the issue, and since only seven states had enacted laws allowing for the death penalty to be imposed on child rapists, the court perceived this to mean that that the consensus in the United States was that capital punishment for child rapists is not appropriate.
The court may have missed the mark in the Kennedy vs. Louisiana decision, because as soon as the decision was announced, there was a loud roar of objections, most notably from both presidential candidates. This is some indication that the court's decision was not in line with the national consensus, but had more states enacted laws to allow for child rapists to be eligible for the death penalty, the Supreme Court decision could have been an entirely different one.
One wrinkle in the Kennedy vs. Louisiana case that has been pointed out by the New York Times since the Supreme Court decision is the fact that the United States Congress, in addition to the seven states, had included in its amendments to the Uniform Code of Military Justice a provision providing for capital punishment for child rapists. This amendment was passed by Congress and was recently put into force by an executive order by the president.
Oddly enough, both sides in the Kennedy vs. Louisiana case failed to make this point when arguing the case. This statute was also missed by the Department of Justice, the agency in charge of defending laws passed by Congress. Following the New York Times article addressing this statute, the Department of Justice released a statement, basically admitting its mistake, saying that it was unaware of the statute and it should have brought it to the Court's attention but failed to do so.
Given this omission, the state of Louisiana will likely seek a rehearing in the case, and we cannot even hazard a guess as to what the outcome of that would be. Cruz believes that the chances of a rehearing being granted are slim to nil, although the existence of the federal statute and the public outcry following the decision may be enough reason to doubt the national consensus on the issue that was previously assumed.
