Legal Commentary

As Sam Kamin notes over at Co-Op, today the SCT is hearing arguments in Kennedy v. Louisiana, a case involving the constitutionality of the application of the death penalty to a person convicted of a non-homicidal crime, in this case, the rape of a child.  Because I still have to prep for two classes both today and tomorrow, our last day of the semester, I can't opine at length on the briefs until a bit later, but it's worth noting that the Court's support in the past for the death penalty has often been predicated on the assumption that retributive justice theory supports the death penalty. 

This article of mine from a couple years ago (update: sorry, I had the wrong link earlier) tries to systematically undermine that conclusion. In fact it gives strong reasons to think retributive theory, at least in the version I find most compelling, is actually hostile to the death penalty.  If that argument succeeds, it succeeds against the death penalty's use not only against murderers but also child-rapists. And since the Court has moved away in large measure from predicating its 8th Amendment analysis on non-retributive goals, it entails the conclusion that the Court should make the small move of extending Coker v. Georgia, which held that the Eighth Amendment prohibits the execution of a rapist of an adult, to this scenario.

I should also mention that there are very few self-described retributivists in the academy who support the death penalty. The one who comes to mind most readily is Robert Blecker of NYLS. Blecker's views in the past have been based on an intuitionist defense of retributivism, which I find unpersuasive. Putting that disagreement aside, it's worth noting that even Blecker has always tried to use the retributive justification of the death penalty as a defense of punishing with execution only the worst of the worst, and definitely not all murderers. My guess is that Blecker, along with others, would view a child-rapist  (or the rape of a child) as not as terrible or evil as a murderer (or the murder of a child). If that's the case, it would be problematic for the Court to reach any conclusion that retributivism supports the death penalty here -- when so few people who have consistently and mindfully aligned themselves under retributivism's flag take the opposite view.