KENNEDY v. LOUISIANA
128 S.Ct. 2641 (2008)
Supreme Court of United States.
Argued April 16, 2008.
The same distinction between homicide and other serious violent offenses against the individual informed the Court's analysis in Enmund,458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140, where the Court held that the death penalty for the crime of vicarious felony murder is disproportionate to the offense. The Court repeated there the fundamental, moral distinction between a "murderer" and a "robber," noting that while "robbery is a serious crime deserving serious punishment," it is not like death in its "severity and irrevocability." Id., at 797, 102 S.Ct. 3368 (internal quotation marks omitted).
Consistent with evolving standards of decency and the teachings of our precedents we conclude that, in determining whether the death penalty is excessive, there is a distinction between intentional first-degree murder on the one hand and nonhomicide crimes against individual persons, even including child rape, on the other. The latter crimes may be devastating in their harm, as here, but "in terms of moral depravity and of the injury to the person and to the public," Coker, 433 U.S., at 598, 97 S.Ct. 2861 (plurality opinion), they cannot be compared to murder in their "severity and irrevocability." Ibid.
In reaching our conclusion we find significant the number of executions that would be allowed under respondent's approach. The crime of child rape, considering its reported incidents, occurs more often than first-degree murder. Approximately 5,702 incidents of vaginal, anal, or oral rape of a child under the age of 12 were reported nationwide in 2005; this is almost twice the total incidents of intentional murder for victims of all ages (3,405) reported during the same period. See Inter-University Consortium for Political and Social Research, National Incident-Based Reporting System, 2005, Study No. 4720, http://www.icpsr.umich. edu (as visited June 12, 2008, and available in Clerk of Court's case file). Although we have no reliable statistics on convictions for child rape, we can surmise that, each year, there are hundreds, or more, of these convictions just in jurisdictions that permit capital punishment. Cf. Brief for Louisiana Association of Criminal Defense Lawyers et al. as Amici Curiae 1-2, and n. 2 (noting that there are now at least 70 capital rape indictments pending in Louisiana and estimating the actual number to be over 100). As a result of existing rules, see generally Godfrey, 446 U.S., at 428-433, 100 S.Ct. 1759 (plurality opinion), only 2.2% of convicted first-degree murderers are sentenced to death, see Blume, Eisenberg, & Wells, Explaining Death Row's Population and Racial Composition, 1 J. of Empirical Legal Studies 165, 171 (2004). But under respondent's approach, the 36 States that permit the death penalty could sentence to death all persons convicted of raping a child less than 12 years of age. This could not be reconciled with our evolving standards of decency and the necessity to constrain the use of the death penalty.
It might be said that narrowing aggravators could be used in this context, as with murder offenses, to ensure the death penalty's restrained application. We find it difficult to identify standards that would guide the decisionmaker so the penalty is reserved for the most severe cases of child rape and yet not imposed in an arbitrary way. Even were we to forbid, say, the execution of first-time child rapists, see supra at 2651, or require as an aggravating factor a finding that the perpetrator's instant rape offense involved multiple victims, the jury still must balance, in its discretion, those aggravating factors against mitigating circumstances. In this
context, which involves a crime that in many cases will overwhelm a decent person's judgment, we have no confidence that the imposition of the death penalty would not be so arbitrary as to be "freakis[h]," Furman, 408 U.S., at 310, 92 S.Ct. 2726 (Stewart, J., concurring). We cannot sanction this result when the harm to the victim, though grave, cannot be quantified in the same way as death of the victim.
It is not a solution simply to apply to this context the aggravating factors developed for capital murder. The Court has said that a State may carry out its obligation to ensure individualized sentencing in capital murder cases by adopting sentencing processes that rely upon the jury to exercise wide discretion so long as there are narrowing factors that have some "`common-sense core of meaning . . . that criminal juries should be capable of understanding.'" Tuilaepa, 512 U.S., at 975, 114 S.Ct. 2630 (quoting Jurek v. Texas,428 U.S. 262, 279, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976) (White, J., concurring in judgment)). The Court, accordingly, has upheld the constitutionality of aggravating factors ranging from whether the defendant was a "`cold-blooded, pitiless slayer,'" Arave v. Creech,507 U.S. 463, 471-474, 113 S.Ct. 1534, 123 L.Ed.2d 188 (1993), to whether the "perpetrator inflict[ed] mental anguish or physical abuse before the victim's death," Walton, 497 U.S., at 654, 110 S.Ct. 3047, to whether the defendant "`would commit criminal acts of violence that would constitute a continuing threat to society,'" Jurek, supra, at 269-270, 274-276, 96 S.Ct. 2950 (joint opinion of Stewart, Powell, and STEVENS, JJ.). All of these standards have the potential to result in some inconsistency of application.
As noted above, the resulting imprecision and the tension between evaluating the individual circumstances and consistency of treatment have been tolerated where the victim dies. It should not be introduced into our justice system, though, where death has not occurred.
Our concerns are all the more pronounced where, as here, the death penalty for this crime has been most infrequent. See Part III-D, supra. We have developed a foundational jurisprudence in the case of capital murder to guide the States and juries in imposing the death penalty. Starting with Gregg,428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859, we have spent more than 32 years articulating limiting factors that channel the jury's discretion to avoid the death penalty's arbitrary imposition in the case of capital murder. Though that practice remains sound, beginning the same process for crimes for which no one has been executed in more than 40 years would require experimentation in an area where a failed experiment would result in the execution of individuals undeserving of the death penalty. Evolving standards of decency are difficult to reconcile with a regime that seeks to expand the death penalty to an area where standards to confine its use are indefinite and obscure.