The Supremes heard oral argument yesterday in Kennedy v. Louisiana, the latest effort to disconnect the constitutionality of the death penalty from the crime of murder.  While the court has already held it unconstitutional to impose the ultimate sanction for crimes committed by juveniles and the mentally retarded, and has rejected the attempt to impose the death penalty for the rape of an adult, Coker v. Georgia, this time may be the charm.

The  WSJ Law Blog, stealing from  Dahlia Lithwick who was present for the argument, provides some of flavor of the questioning:

Fisher argued that if you look at the pair of recent cases that banned capital punishment for mentally retarded offenders (in 2002) and juvenile offenders (in 2005), it’s clear the social consensus is trending away from the death penalty. But Roberts said the clear trend that matters is not the one Fisher points to but rather that “more and more states are passing statutes imposing the death penalty in situations that do not result in death.” The cases declining to allow capital punishment for minors or the mentally retarded, he says, are “qualitatively different” from the distinction here between child rape and murder, because they focus on the “culpability of the offender” as opposed to the nature of the offense.

Scalia, writes Lithwick, almost chortled. “Did you ever hear the expression ‘hoist by your own petard?’” he asked Fisher. “The trend here is clearly in the direction of permitting more and more … capital punishment for this crime!”

Frankly, it just amazes me when the right side of the court, the one that argues about originalism and what Madison would have whispered to Jefferson if they ever whispered to one another, suddenly abandons all pretense of caring about precedent to expound on evolving views of penal decency.

Naturally, Justice Alito joined the chorus:

Justice Samuel Alito quotes a line from Coker opining that “life is over for the victim of the murderer. For the rape victim, life may not be nearly so happy as it was.” He asks, incredulously, is that “something that would be written today?” Ginsburg adds that the attitudes toward rape that animated Coker—that women were the property of their husbands or fathers and were “spoiled” after a rape—have “no parallel with child rape.” There was a lot of race and gender bias under the surface of the Coker case that isn’t immediately present in this one.

So Coker’s preventing executions for rape was just a matter of race and gender prejudice?  No one could have seen that coming. 

The other side opened with an appeal to emotion, according to Lithwick:

Juliet L. Clark is an assistant district attorney from Louisiana, and she opens with the most graphic description of a sex crime I have heard at the court. It is so awful that Justice Stevens finally stops to ask whether the victim’s injuries were permanent.

And not to have the possibility of expanding the death penalty happen without him, Ted Cruz, outgoing solicitor general of Texas weighed in:

He opens forcefully with the claim that “few evolving standards of decency are more pronounced than the growing understanding in modern society of the unique and irreparable harm caused by violent child rape.” He urges that Coker dealt with adult rape, expressly leaving open the question of child victims. He adds that part of the reason states now want to penalize child rape with execution is that today, “we’re seeing crimes that 20, 30, 40 years ago, people wouldn’t imagine.”

And that’s just amongst Texas politicians.

What is amazing about the entire tone of the argument is how the pro-execution arguments have seized the language of their adversaries, relying on evolving standards and the living Constitution to overrule precedent and allow executions where they have never been permitted before. 

An interesting intramural discussion broke out, that will enlighten as well:

Justice Stephen Breyer observes that he can imagine many such “horrible” circumstances. But, he cautions, “I am not a moralist. I am a judge.” He worries that if the court reverses itself after decades of confining capital punishment to homicide, the court will rapidly find itself in the business of creating some highly complex “moral categorization of crime.”

“Just the way they used to,” grins Scalia.

“Perhaps 200 years ago, that’s true,” retorts Breyer.

There is no question that the issue of crimes against children is one of the volatile and emotional around, and that if any crime will push the Supremes over the edge, the rape of a child is the one to do it.  Breyer’s point, that disconnecting death from death (yes, treason has been the oddball since the beginning, but it’s different from all other crimes and really doesn’t help anyone’s analysis) opens the door to a constant series of constitutional assessments of moral relativism that feeds the tyranny of the majority in a way that courts are never supposed to do.

Why is this different than evolving standards of decency flowing in the other direction?  That’s a good question, and one that is clearly colored by a world view that mercy and compassion are better than vengeance and retribution.  The belief is that we become more enlightened over time, less barbaric, and that the death penalty is our homage to The Code of Hammurabi, a relic of a time when we were far more brutal. 

But even under Hammurabi, it was a death for a death.  This parity isn’t good enough for us, thousands of years later?  Is lex talionis (mirror justice) too easy-going for the death penalty advocates?

Not that I’m in favor of editorializing the reportage of Supreme Court arguments, but Dahlia ends her article with this bit of personal insight:

Me, I am going to pour myself a big old drink and try to count the number of jurists who, after a lifetime on the court, have concluded that the death penalty in America simply cannot be fixed. Then I’ll weigh them against the number who started off opposing capital punishment and became increasingly certain that the system works. Maybe this is yet another trend that doesn’t matter. And Justice Scalia would tell me that the death penalty needn’t be perfect to be constitutional. But it’s probably not an accident that judges who have stood watch over hundreds of executions eventually need to believe that they are evolving toward a system that’s at least better than what came before.

This has long been clear:  As Supreme Court judges “age”, there has been a clear tendency to arrive at the conclusion that for all their efforts, arguments and opinions, they ultimately reach the conclusion that the death penalty is cruel and unusual punishment, and that it is not, cannot and never will be fairly applied.  Moreover, a lifetime of reviewing death penalty cases cannot help be leave one of the view that our criminal justice system, thought “not perfect” as Justice Scalia finds acceptable, is too far from perfect to stomach when it comes to the execution of people.

Maybe all of this really depends on how much “collateral damage” one is willing to accept as part of our imperfect system in order to gain a little, if any, deterrence and rid our society of those people who disgust us.  The answer to this question largely depends on whether you’re the guy pushing the plunger on a syringe of a three-drug cocktail or the family of the guy on the table with a needle in his arm.