Atlantic Monthly

Capital Gains

Before this morning’s arguments on whether Louisiana can execute Patrick Kennedy’ the Chief Justice read an opinion that must have made the condemned man’s lawyers’ hearts sink. In what might give a signal, however faint, of the Court’s disposition toward capital punishment, John Roberts delivered a judgment that roundly rejected the claim by two Kentucky death-row inmates that lethal injection would be a cruel way to kill them, and therefore prohibited under the Eighth amendment to the Constitution. A healthy majority of 7-2 sided against the inmates. And on a Court that thinks pumping a man full of toxic chemicals is not likely to cause a “‘substantial’ or ‘objectively intolerable’ risk of serious harm,” Kennedy could not expect a great deal of compassion.

Juliet Clark, lawyer for Louisiana, argued that rape of a eight-year-old merits death. The courtroom, already hushed, did seem to hold its collective breath in contemplation of the massive physical trauma she described in her first minutes of argument. She did not even mention an especially perverse detail — that after the rape, Kennedy called in to his boss and told him he wouldn’t be coming in to work, because his bed was bloody, and his daughter and victim had “become a lady” that day. Stephen Breyer wondered whether the Court might be inaugurating an era of execution for all manner of crimes. (No, argued Louisiana — just for horrible ones like this.) The “evolving standards of decency,” Clark and Texas Solicitor General Ted Cruz claimed, had progressed to the point where we might recognize crimes like this as “particularly heinous,” and therefore worthy of death.

Jeffrey Fisher, the rapist’s counsel, had few options. He brought up changing attitudes toward capital punishment — more Americans cringe now at the thought of executing murderers than they once did — but faced an immediate challenge from Roberts, who pointed out that more states have adopted capital punishment for child rape. “Have you heard the expression ‘hoist by your own petard’?” asked Antonin Scalia. What does one say to a Court that defers so readily in defining “cruelty,” and whose humility before legislation and settled precedent seems, in the case of some justices, sincere to a fault? Perhaps not much.

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