25 June 2008

The Broader Impact of The Kennedy Case

Today's U.S. Supreme Court decision may invalidate part of Colorado's death penalty. Justice Kennedy's decision in the U.S. Supreme Court case of Kennedy v. Louisiana went further than simply abolishing the death penalty for child rape in Louisiana.

The opinion was written broadly enough to invalidate the death penalty for child rape in five other states and Montana, even though most of those statutes, unlike the statute in Louisiana, apply only to more aggravated cases. Democrat Joe Rice introduced legislation last year to impose a death penalty for child rape in Colorado, but it quickly failed in committee.

Child rape isn't the only non-homicide crime for which the death penalty is possible, and the opinion went beyond the case of child rape to provides that “[a]s it related to crimes against individuals, the death penalty should not be expanded to instances where the victim’s life was not taken.”

As I noted previously:

The other non-murder crimes on the books are as follows:

Three address cases where death is likely but hard to prove:

* Treason (Arkansas, Calif., Colorado, Georgia, Illinois, Louisiana, Mississippi, Missouri, Washington, Federal)
* Espionage (New Mexico, Federal)
* Aggravated kidnapping (Co., Idaho, Il., Missouri, Mont.)

Three more amount to particularly aggravated cases of what amount to attempted murder:

* Aircraft hijacking (Ga., Mo.)
* Placing a bomb near a bus terminal (Mo.)
* Aggravated assault by incarcerated, persistent felons, or murderers (Mont.)
* Attempting, authorizing or advising the killing of any officer, juror, or witness in cases involving a Continuing Criminal Enterprise, regardless of whether such killing actually occurs. (Federal)

One is a product of war on drugs hysteria:

* Drug trafficking (Fl., Missouri, Federal)

The only Colorado crime on this list, First Degree Kidnapping, Section 18-3-301, Colorado Revised Statute provides that: "no person convicted of first degree kidnapping shall suffer the death penalty if the person kidnapped was liberated alive prior to the conviction of the kidnapper." Likewise, life in prison without parole is not a sentencing option for the offense "if, prior to his conviction, the person kidnapped was liberated unharmed."

The Kennedy opinion preserves the death penalty's constitutionality for treason, espionage and the federal drug kingpin statute, for now, at least:

Our concern here is limited to crimes against individual persons. We do not address, for example, crimes defining and punishing treason, espionage, terrorism, and drug kingpin activity, which are offenses against the State.

But Kennedy may invalidate statutes like Colorado's death penalty for kidnapping (also found in Idaho, Illinois, Missouri and Montana), although it would be possible to view the Colorado statute as something in the nature of a rebuttable presumption of homicide in connection with kidnapping, rather than an actual non-homicide death penalty, or to view the fact that a kidnapping may be ongoing as an aggravating factor that mandates a different analysis. To my knowledge, there is no one convicted of non-homicide kidnapping on death row anywhere in the United States today, so the issue is not ripe for adjudication at this time. Everyone on death row in Colorado was convicted of murder.

The ruling also almost certainly invalidated the Montana death penalty for aggravated assault statute. It may also invalidate the Missouri death penalty for placing a bomb near a bus station and aircraft hijacking, and the Georgia aircraft hijacking death penalty statute. It isn't clear if the death penalty for attempted murder to obstruct justice by an organized crime figure survives this decision either -- there is an argument that the emphasis on the judicial process makes it a crime against the state similar to treason.

The opinion also restates when the death penalty is available in felony-murder cases for someone who is not the actually killer:

[I]n Enmund v. Florida, 458 U. S. 782 (1982), the Court overturned the capital sentence of a defendant who aided and abetted a robbery during which a murder was committed but did not himself kill, attempt to kill, or intend that a killing would take place. On the other hand, in Tison v. Arizona, 481 U. S. 137 (1987), the Court allowed the defendants’ death sentences to stand where they did not themselves kill the victims but their involvement in the events leading up to the murders was active, recklessly indifferent, and substantial.

Also, while this decision does not invalidate the federal drug kingpin statute, the Court's emphasis on the importance of which death penalties are carried out is notable. While rare, there have been a steady trickle of executions for espionage and treason over the nation's history. But the federal drug kingpin statute has no such heritage, and hence, may be on feeble ground. Also, the fact that only two states have the death penalty for drug kingpins, even though there is a federal statute to that effect, and that none of the other non-homicide/non-treason death penalties have been carried out or even enacted in more than five states, suggests that they are on questionable ground constitutionally. More background can be found here.

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