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Thursday, April 05, 2012

Dormant Death Sentences

One of the defects of the Supreme Court's current approach to the death penalty is the way its categorical exemption jurisprudence leaves the Cruel and Unusual Punishments Clause frozen in time. Three times in the past decade, the Court has exempted whole categories of offenders and offenses from the death penalty: the mentally retarded in Atkins v. Virginia (2002), juveniles in Roper v. Simmons (2005), and those who rape as child (or perhaps commit any non-homicide offense) in Kennedy v. Louisiana (2008). Its methodology in such cases has been to count up the number of States that authorize capital punishment for each group, also taking into account how often the punishment is actually imposed on each group, and then determining whether those numbers are small enough to indicate a "national consensus" against each practice.

Putting to one side whether a "national consensus" should even be the touchstone under the Clause as incorporated by the Fourteenth Amendment, the approach has been justifiably criticized for not allowing national consensus to shift and evolve over time. For example, although only seven States had authorized the death penalty for child rape at the time Kennedy was decided, that number had been trending upwards. Who knows how many States would have eventually authorized the practice had the Court taken a hands-off approach? The supposed "national consensus" against capitalizing child rape will never be able to evolve and perhaps dissipate because the Court froze into the Eighth Amendment the view of the practice prevalent in 2008.

That's why I wonder whether States have considered passing, or reaffirming, statutes exposing to the death penalty the mentally retarded, juveniles, or those who rape a child.

After all, we very often see States passing laws regulating abortion that state legislators must realize conflict with Roe v. Wade. Surely, one purpose of such legislation is symbolic, but just as surely some of the proponents must believe that it might lead to a court case that ultimately topples Roe. Under the Court's current approach, the only way it might reconsider Atkins, Roper, or Kennedy is for a sufficient number of States to pass laws exposing the mentally retarded, juveniles, or those who rape a child to the death penalty.

But, again, the Court's methodology involves looking not just at how many States authorize capital punishment under those circumstances but how many times they actually impose it. More importantly, the only way the Court can overrule one of these cases is for there to be a real live case to use as the vehicle to do so. Thus, States would have to not only pass statutes that seem to conflict with Atkins, Roper, or Kennedy, but to actually prosecute, convict, and sentence to death people under those statutes.

Could they do so? I believe they could mete out such "dormant death sentences": sentences of death that cannot be carried out under current law but that might spring into existence if the law ever changes. The Cruel and Unusual Punishments Clause provides that "cruel and unusual punishments [shall not be] inflicted." Scholars, myself included, have examined and re-examined every word in that Clause -- except "inflicted." Following Nicholas Quinn Rosenkranz's important directive that we read the Constitution carefully to discern who exactly is the addressee of its demands and constraints (The Objects of the Constitution, 63 Stan. L. Rev. 1005 (2011)), we need to discern which branch of government "inflicts" punishment. While legislatures prescribe punishments, and judges impose punishments, only executive officials inflict punishments. Thus, it is at least arguable that legislatures can prescribe the death penalty for the mentally retarded, juveniles, and those who rape a child, and judges can impose the death penalty on them, as long as the penalty is never inflicted until Atkins, Roper, or Kennedy are overruled.

I can foresee two major objections, one pragmatic and one doctrinal. The obvious pragmatic objection is cost: the death penalty is very costly. Why would States undertake such monumental costs in cases where the prospect of ultimately carrying out the capital sanction is dim at best? My one word answer: California. Here we have a State that imposes enormous numbers of death sentences and hardly ever executes anyone -- 721 people on death row but only 13 executions since 1976. (I may have to re-think this answer after November).

The doctrinal objection is that "inflicts" must refer to the imposition of punishment because courts entertain constitutional objections to carceral sentences when the sentence is imposed, rather than dismissing such objections as unripe. If the Constitution is violated only when the punishment is carried out, the argument goes, inmates would have to wait until they have served a certain amount of time to bring a ripe constitutional claim. But it seems to me that at least one reason courts entertain such claims from the outset is that it would impossible for inmates to determine the exact moment in time when a carceral sentence is excessive and therefore a constitutional claim ripe for review. Inmates would have to continuously bring such claims and the court would have to continuously respond: "Nope, not yet." That courts entertain such claims from the outset is more a pragmatic concession to this problem -- like the "capable of repetition but evading review" exception to mootness -- than any reflection on the meaning of the word "inflicts."

Posted by Michael J.Z. Mannheimer on April 5, 2012 at 10:56 PM in Constitutional thoughts, Criminal Law | Permalink

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