Constitutional Comparativism and the Death Penalty for Child Rape

It has been a long time since the Supreme Court has referenced foreign and international sources in constitutional cases. Since Roper was decided in March 2005, the Supreme Court has not issued a single decision relying on the interpretive approach outlined in Roper and Lawrence. In the most recent term, I am not aware of a single Supreme Court case that relied on contemporary foreign or international law and practice to interpret constitutional provisions. This is despite the obvious opportunities to do so in the contexts of abortion (Carhart), free speech (Morse), due process (Philip Morris) and equal protection (Parents Involved in Community Schools). The same goes for the 2005 Term.

But with the Supreme Court’s decision last week to hear Kennedy v. Louisiana–a case involving the death penalty for the rape of a child–we have the best chance since Roper for the Court to engage in constitutional comparativism. To the best of my knowledge no other country in the world imposes the death penalty for this crime. (Please correct me if I am wrong). Moreover, Article 6 of the ICCPR provides that “In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes.” This has been interpreted to authorize the death penalty only “in cases where it can be shown that there was an intention to kill which resulted in the loss of life.” Thus, it would appear that foreign and international experiences are consistent with a conclusion that the death penalty for the rape of a child is cruel and unusual punishment.

So if transnationalist justices wish to follow or expand upon Roper, one would fully suspect that Kennedy would be a good vehicle to do so. But having said that, I have serious doubts that the Court will seize the opportunity. In Roper one could argue that the Court thought that reference to foreign and international law was somehow necessary. As I wrote in this article, “[w]hen the objective indicators of a national consensus are weak, the strong global consensus fortifies the Court’s independent judgment. It emboldens the Court to do what is ‘right’ – weak domestic indicators be damned.”

Not so with Kennedy. In his cert. brief the petitioner argues that (1) there are 3,300 people on death row in America and only one of them, Patrick Kennedy, did not commit murder; (2) only five states even have statutes on the books theoretically allowing the death penalty to be imposed for child rape; and (3) no state since Coker – indeed, no state for over forty years – has executed a single person for any kind of rape. If this is true, then the Court could easily find a national consensus against the death penalty for non-homicidal crimes.

If a national consensus can easily be found, then the Court could readily conclude that the death penalty for this crime violates the Eighth Amendment, with or without an appeal to comparative experiences. Therefore, I would hazard that the Court will not rely on foreign sources to interpret the Eighth Amendment, despite obvious opportunities to do so.

I would suspect that more than five justices will rule against the state of Louisiana, and therefore one or more members in the majority will be in the so-called “nationalist” camp. Those justices will be reluctant to sign off on an opinion that they perceive makes inappropriate references to comparative experiences. Moreover, Chief Justice Roberts could easily be in the majority in this case and he could assign the opinion to someone who is not persuaded by the merits of constitutional comparativism. In short, judicial minimalism in pursuit of a broad majority will discourage reference to comparative experiences.

Based on the absence of any constitutional comparativism since Roper, one suspects that the transnationalists on the Court are in quiet retreat. Kennedy will be one of the best tests since Roper of whether that is so. Sure, we might get a concurring opinion from Justices Ginsburg or Breyer that engages in comparativism. But I doubt we will get much more than that.