Confession

Since my senior year of college, when I wrote about the constitutionality of the death penalty for my senior thesis, I have struggled with a conundrum. It's a struggle that. as a defense attorney and staunch opponent of capital punishment, I hate to admit to. While I desperately want the US Supreme Court to declare the death penalty unconstitutional, I am secretly not convinced that there is a principled, intellectually honest way to reach that blanket prohibition. I'm like a minister who secretly harbors some failure of faith.

I agree wholeheartedly with the result in Kennedy v. Louisiana. I think death is not a fitting punishment for the wide array of crimes that fits under the umbrella of "child rape." (Hardly surprising as I don't think death is a fitting punishment for mass murderers or serial killers.) I share the amici's policy concerns about possibly increasing the risk of death to child rape victims and possibly decreasing reporting of child sex abuse to protect family members from execution. I am well aware of the special concerns about the possibility of false accusations in the emotionally-charged arena of child sex crimes. And I have personally seen how those trials, perhaps because of the intense emotions involved, are more susceptible to error than trials on other charges. In my experience, we should be even more concerned about the possibility of executing an innocent person in this arena than in any murder case. I certainly recognize that of all the thousands of persons sitting on death row in this country, only two are there for child rape. And while many states have been considering death for child rape, only a handful have actually passed it. And only one has actually imposed the sentence on anyone. But I'm still not completely convinced that the majority didn't just create a path to reach the result it wanted.

I rant and rave when court's reach what I feel are result-oriented decisions against my clients. It angers me no end to read legitimate issues being blown-off in such a way that it becomes clear the court is ignoring it because they are convinced the defendant is guilty. And I don't like to be inconsistent. If I dislike result-oriented decisions, I have to dislike them even when the decision is in my favor. But I really want to be free to embrace the Kennedy decision.

While I believe the decision today is morally correct, I desperately need someone to convince me it is legally correct, as well. Anyone?

ADDED: I think it's significant to note how many justices have begun their careers favoring the death penalty but changed their views over time. Most famous for this, of course, is Justice Blackmun. I remember the thrill I had the day I read his opinion in which he declared that he would no longer "tinker with the machinery of death." I agree with his central point, that despite all that we try and all the procedures we come up with, we cannot ever remove human fallibility from the process. There will always be some level of arbitrariness and unequal application. Reasonable people can disagree about which murders are the truly heinous ones. There may always be some level of discrimination involved in the death penalty because it will always be easier to impose death on someone prosecutors and juries don't feel a close connection to, someone who is different from them. (The statistical evidence certainly supports the notion that minority killers of white victims are disproportionately charged capitally.)

I completely agree with those justices who have concluded we can never make the system fair. I think anyone who has any significant experience working in or near capital cases has to see that. But how exactly do we translate that fundamental unfairness into a persuasive argument that the death penalty is therefore unconstitutional? Due process? Equal protection?