Kennedy v. Louisiana - Oral Argument

Argument of Jeffrey L. Fisher

Chief Justice Roberts: We'll hear argument first this morning in Case 07-343, Kennedy versus Louisiana.

Mr. Fisher.

Mr. Fisher: Thank you.

Mr. Chief Justice, and may it please the Court: This country has not executed anyone for a rape of any kind in over 43 years.

Louisiana's attempt to reintroduce this practice into American society violates the Eighth Amendment for two distinct reasons.

First, a long-standing national consensus exists against it.

Indeed, Louisiana's capital rape law is particularly at odds with national values because Louisiana is the only State in which Petitioner, as a non-recidivist, could be subject to the death penalty.

Second, Louisiana's law violates this Court's Eighth Amendment-narrowing jurisprudence.

It gives juries unfettered discretion to choose who, among the vast class of offenders convicted of child rape, may be subject to the death penalty.

Now, this is in stark contrast to the handful of other States that have capital rape laws that they've recently enacted.

Texas, for example, requires an offender to have served a prior sentence for the same crime of 25 years before--

Justice Scalia: Our jurisprudence just requires the narrowing of the death penalty to be... to particularly heinous crimes.

And one could say that rape is in and of itself particularly heinous, rape of a child of 12 or under.

Mr. Fisher: --It's no doubt a serious crime, Justice Scalia, but I believe this Court's narrowing jurisprudence requires narrowing beyond a particularly heinous crime.

Of course, in Godfrey and Gregg against Georgia, this Court said that deliberate murder is not on its own enough to subject an offender to the death penalty.

So there's two problems that arise with Louisiana's statute in the context of this Court's narrowing jurisprudence.

Justice Scalia: How would you describe a particularly heinous rape of a child under 12?

What would make it particularly heinous?

Mr. Fisher: Well, there could be several aggravating facts that would make a rape of a child, or indeed of any person, a particularly egregious crime, but in Coker against Georgia, this Court did not simply hold that the Eighth Amendment prohibited imposing the death penalty for the crime of rape; it held that this Court... that the Eighth Amendment prohibited imposing the death penalty for rape with aggravating circumstances.

Remember in Coker against Georgia, there were two aggravating circumstances in that case.

First, the offender was a recidivist.

He had been convicted of rape three times, was a convicted murder who had escaped from prison.

Second, he committed the rape in the course of committing other very serious felonies, including kidnapping and robbery.

And so, at the very minimum, the State stands here with the burden today to say that an average child rape is worse than the crime in Coker, that this Court held was not sufficiently superior--

Justice Scalia: Suppose... suppose the State says that all recidivist rapists of children under 12 will suffer the death penalty.

Does it have to narrow that class further?

I mean, the need for narrowing depends upon how narrow the class is described in the first place.

Right?

Mr. Fisher: --If--

Justice Scalia: I mean, if the law says you have to be a recidivist, you have to have all the other factors that you just mentioned, if the law said that, would you come in and say,

"Oh, no, you can't just give everybody who commits that crime the death penalty? "

You have to narrow the class.

Mr. Fisher: --Well, no question that would be a much stronger argument under this Court's narrowing jurisprudence.

Now, you'd still be left with two problems with that kind of a statute: First, you'd still potentially be left with the problem that this Court addressed in Furman and all the subsequent cases of having a large class of offenders of which only a few get the death penalty.

Now, there needs to be some reason to differentiate.

The State might well say... especially the State of Texas and other States that have these very severe recidivist requirements might say that is good enough, but they'd still be left with the... with the argument that they would have to make that a person who convicts... who commits child rape and does not... it does not result any death, is a worse offender than somebody who deliberately kills somebody--

Justice Souter: All right.

What if--

Mr. Fisher: --on average.

Justice Souter: --What if, instead, the State simply defined the class as the class of those who commit rape, and then listed as an aggravating circumstance the rape of a child under 12 years old?

That would be perfectly consistent with the narrowing jurisprudence, wouldn't it?

Mr. Fisher: I'm not sure it would, Justice Souter.

Remember Coker tells us, I think, that you can't simply start with rape and then add an aggravating circumstance, in terms of this Court's Eighth Amendment jurisprudence.

But even if you're asking, just in terms--

Justice Ginsburg: Can you go over that, Mr. Fisher?

Because the... there was a plurality opinion, right, in Coker?

And Justice Powell wrote separately, and I thought he left open an outrageous rape resulting in serious, lasting harm to the victim.

He said that the Coker jury was not asked and could not have found from the facts in that case that the offense was outrageous or want only violent in that it involved a aggravated battery.

So you don't have an opinion of five Justices saying that, in any and all circumstances, rape that leaves the victim alive cannot be punished by the death penalty.

Mr. Fisher: --Let me first say that the State hasn't alleged those things that Justice Powell identified.

So, even if Justice Powell's opinion controlled, I think we would prevail here.

But remember--

Justice Ginsburg: I'm questioning... you're saying it's off the chart because the Court held that you cannot have a death penalty for rape.

And I suggested that that's not so clear.

Mr. Fisher: --Well, my understanding of this Court's Marks rule is that the narrowest opinion that commands a majority... so Justice Powell's opinion was actually a seventh vote.

If you count the two Justices on this Court who held the death penalty was unconstitutional across the board and add the four that constituted the plurality in Coker, we think the plurality opinion becomes--

Justice Scalia: That's a--

Mr. Fisher: --the controlling one.

Justice Scalia: --That's strange way of making a majority, isn't it?

[Laughter]

Two people who think even the death penalty for murder is no good, they're going to form the majority of people who consider whether a lawful death penalty can be imposed for rape.

I think at least in those circumstances, you have to discount the people who would not allow the death penalty under any circumstances for any crime.

Mr. Fisher: Well, I'm not aware of any wrinkle in this Court's jurisprudence that says that if a Justice is too far out of the mainstream that their vote is discounted.

Justice Scalia: He--

Mr. Fisher: But I want to try to--

Justice Scalia: --He... he is not considering the issue that is before the Court.

The issue before the Court is whether... whether a permissible death penalty can be imposed for this crime.

These parties say there's no such thing as a permissible death penalty.

I mean, it would be... if that wrinkle isn't there, we should iron it in pretty quickly.

[Laughter]

Justice Ginsburg: At any rate--

Mr. Fisher: --Fair enough.

Justice Ginsburg: --There were four justices on the plurality opinion.

That was the only point I wanted to make.

Mr. Fisher: Okay.

Thank you.

But--

Justice Souter: Even... even with respect to... now, I'm asking you to--

Mr. Fisher: --Right.

Justice Souter: --to forget my question again for a minute.

Mr. Fisher: Okay.

But--

Justice Souter: Even on the plurality analysis, your argument, as I understand it is, if there is any question left in Coker, in effect it's answered by Enmund/Tison.

Mr. Fisher: --I think that's right, and it's also answered by simply the empirics across the country right now, if you did nothing more than applied the Roper and Atkins cases.

Justice Souter: Okay, but then that's a different reason.

Mr. Fisher: Yes.

Chief Justice Roberts: Well, speaking of Roper and Atkins, is it... is it only work in one way?

How are you ever supposed to get consensus moving in the opposite direction?

In other words, you look to the number of States under Roper and Atkins who impose it, and you say, well, most of them are abolishing it, so we think it's unconstitutional, combined with other factors.

Now, if there's going to be a trend the other way, how does that happen?

As soon as the first State says, well, we're going to impose the death penalty for child rape, you say, well, there isn't a consensus, so it's unconstitutional.

And do 20 States have to get together and do it at the same time?

Or how are they supposed to move the inquiry under Atkins and Roper in the opposite direction?

Mr. Fisher: Well, I think it's possible, but this Court has understood... I think well understood that it is a practical problem.

It is one that gives this Court caution before ruling a law unconstitutional.

Here, I don't think--

Justice Scalia: That's nice.

Mr. Fisher: --you're going to need to gravel--

Justice Scalia: I say that's nice.

We're in effect... in effect prohibiting the people from changing their mind.

Mr. Fisher: --I don't--

Justice Scalia: --about what justify's the death penalty.

Mr. Fisher: --I don't think that's necessarily the case, Justice Scalia.

And, of course, there are narrower ways to decide this case that could leave open the possibility of future developments.

But, Mr. Chief Justice, I want to answer your question and say I think there may be a misunderstanding that this Court really needs to address that in this case, because we have had, since 1995 when the State of Louisiana passed this law and the year after when the supreme court of Louisiana upheld it in a very widely covered opinion from which this Court denied certiorari, there has been a national debate for 12 or 13 years already as to the propriety of imposing the death--

Chief Justice Roberts: And the trend since 1995, '90, has been more and more States are passing statutes imposing the death penalty in situations that do not result in death.

Mr. Fisher: --I think that's right.

You have to ask yourself the question whether that is enough.

Justice Scalia: Didn't we say in Atkins that it's the trend that counts; it's not the number?

Mr. Fisher: I think this Court said in Atkins--

Justice Scalia: The trend... the trendy expression hoist by your own petard: The trend here is clearly in the direction of permitting more and more... of more and more States permitting the capital punishment for this crime.

Mr. Fisher: --Clearly, I think that Atkins and Roper look at trend among other things.

And I think it is important to remember that there were 20 States in each of those cases that allowed the death penalty under those circumstances, but I think we have to ask ourselves whether the movement that's occurred over the past dozen years is enough to matter.

Chief Justice Roberts: Well, let me ask... we will put that to one side, but how much movement you need.

I'm more interested in the analytic question: How does it happen?

I mean because your position would be every one... a case in every one of those States, whatever the number is, is unconstitutional because we've said the trend is the other way.

Well, how does a trend ever get started in the opposite direction?

Mr. Fisher: Well, as it happened here, States can pass laws, and they can bring prosecutions potentially reaching--

Chief Justice Roberts: But you want to say this is... you want to say this is unconstitutional because most States do it the other way.

And I assume if a similar case arose in Texas involving capital punishment in a nondeath case, you would say well, most go the other way.

In other words, if you knock them down one by one, it is kind of hard to get a trend going.

Mr. Fisher: --Well, a State could do something like what Georgia has done, which is pass a law that says that the death penalty is permissible in a given crime... in, for example, rape... to the extent allowed by the United States Supreme Court, which is the extent allowed by the Eighth Amendment.

If several States pass laws like that, eventually this Court even... let's say the Court decides this case in my favor today.

Eventually this Court could take notice of that and take certiorari and again decide whether or not the Eighth Amendment was--

Justice Scalia: They don't even have to say

"the extent allowed by the United States Supreme Court. "

They can pass a law that seems to contradict a prior opinion of ours; can't they?

Mr. Fisher: --Of course.

Justice Scalia: Abraham Lincoln should they could, anyway.

Mr. Fisher: There's no double about that, and it happens frequently.

Now I want to ask about--

Chief Justice Roberts: If somebody in this case is tried and convicted under that law, you would say: Well, that's unconstitutional because there is not a sufficient trend in favor of that.

And it just seems to me that that understanding of Atkins and Roper prevents the development of the law except in one direction.

Mr. Fisher: --As I said, it may be practically difficult, but it's not impossible, because this Court could eventually take notice of what it was seeing.

Now, I think it is important to ask--

Justice Ginsburg: There's a brief in this case on behalf of several States, and the argument that's made in that brief on the point that the Chief Justice has raised is we can never know whether there is a consensus one way or another so long as Coker seems to cover the waterfront, so long as Coker admits of the interpretation that you cannot have the death penalty for rape, period.

So the argument is on this question... not talking about the universe of crimes, but as to rape... we cannot know if there is a consensus one way or another until this Court clarifies what Coker stands for.

Mr. Fisher: --Justice Ginsburg, I think there are two problems with that.

First, it is a theoretical argument that doesn't have any factual underpinning.

There is no evidence in any State legislature that Coker has stood in the way of enacting statutes like this.

And, again, I want to emphasize to this Court to remember, if there were any overhang or distorting effect of Coker, it certainly would have gone away by 1996 when the Louisiana supreme court laid out a very detailed opinion explaining why a law like this could be constitutional and, in effect, exhorting other States to pass laws like it.

And so for a dozen years in death-penalty jurisdictions there has been a very vigorous effort by proponents of these laws to get statutes like this passed.

And look what we end up with.

Mr. Chief Justice, I want to bring myself back to your trend question.

What we end up with is exactly the same number of States allowing the death penalty here as allowed it in Coker in 1977.

Chief Justice Roberts: I know, but, as I pointed out, it is very expensive to run a regime in which you have the death penalty.

And I can see the legislators in those States saying, well, we've got Coker on the books.

We've only got one State.

Why would we want to be the second State and go through this process and then have the Supreme Court throw it out?

You know, everyone is waiting for the next State.

I mean it's a very difficult process, it seems to me, to run the evolution of the law in both directions.

And then if you're insisting on a trend of whatever... I don't know what the number is, 15, or 20, or 30 States... it just can't materialize when you have Coker there and you have Atkins looking only in one direction.

Mr. Fisher: There are, no doubt, various legislative considerations.

I just would--

Justice Scalia: Do you really think that if this Court held in the present case that the death penalty can be imposed for the rape of a child under 12, do you really think that the trend would not continue, that there would not be more States to enact such a penalty?

Mr. Fisher: --Oh, absolutely, Justice Scalia.

Justice Scalia: That there would be more?

Mr. Fisher: No.

Absolutely, I think that it would not continue.

Justice Scalia: That it would not.

Mr. Fisher: If... and I think it is important to understand not just the Louisiana supreme court; but in 2004, when Patrick Kennedy was put on death row in Louisiana, in light of this Court's Atkins and Roper jurisprudence, notice was served in all death-penalty jurisdictions that if you want a law like this, you've got a few years to pass it before this case gets to the Supreme Court.

I think that's why you have seen an uptick of two or there other States passing laws in the last couple of years.

But, again, all that has done is recreate the situation this Court faced in 1977 in Coker, where six States would have allowed the death penalty for child rape.

And in Roper this Court emphasized that it would be very ironic to find a trend or a lack of movement dispositive if the reason for that action more recently is because long ago society recognized that this was an improper punishment and this Court--

Justice Alito: Do you think that all these other States, if told that it is permissible to have the death penalty for child rape at least under some circumstances, would come to the conclusion that the worst case of child rape that can be envisioned is still less heinous than any murder that qualifies for the death penalty?

Mr. Fisher: --I think they may well, Justice Alito.

It's important to recognize not just... well, in Roper this Court said... I think it addressed a similar question.

There has to be a line somewhere in terms of the Eighth Amendment.

Now, we can imagine a terribly serious case with a juvenile offender who is 17 years old, for example, but drawing a line in a place that makes sense almost all of the time is the best we can do.

If a State were to come up and make the argument today that: Imagine the most heinous child rape you can, first of all, it wouldn't say that under the narrowing problem because of Maynard against Cartwright.

But, more importantly, other States would beg to differ.

Look at Utah.

Utah thinks the next most serious crime after murder is assault, an aggravated assault on a prison guard.

South Dakota thinks the next most serious crime after murder is aggravated kidnapping.

Once you roll the line back from the line established in Coker, which is requiring the death of the victim, it becomes extraordinarily difficult to figure out where the line is going to be drawn for Eighth Amendment purposes.

Chief Justice Roberts: I wonder if Atkins and Roper are qualitatively different, considering the mental retardation of the offender, the youth of the offender.

Those are issues that go, as we said in Roper and Atkins, to culpability.

In other words, they are focused on the offender.

This is quite different.

It is focused on the nature of the offense.

And I wonder if that's more something on which we have less basis for determining the issue than a legislature.

We can look at the question of characteristics of the offender and make a judgment about that.

I don't know how we decide this for the reason you were just saying: What crimes are more serious than others?

I wonder if it brings into play our jurisprudence on things like the three-strikes law and others where we sort of say: We can't judge how serious crimes are and which ones are more serious than others, and so we leave that to another branch.

Mr. Fisher: Well, this Court has always differentiated its proportionality analysis from capital to a non-capital context.

In Coker, Enmund, Tison, all of those cases, rest to a significant degree on the seriousness of the crime.

I think perhaps the best discussion is made--

Justice Kennedy: What about treason?

What about treason?

Even the countries of Europe which have joined the European Convention on Human Rights, I believe they make an exception to the prohibition of the death penalty for treason.

You can slaughter your fellow citizens, but if you offend the State you can be put to death.

Is treason an exception from the... our ban on the death penalty except for murder?

Mr. Fisher: --Well, of course, this Court has never answered that, but I think there is every reason to believe--

Justice Scalia: Isn't there a Federal treason statute?

Mr. Fisher: --Of course.

There is every reason to believe--

Justice Scalia: And that doesn't require murder; does it?

Mr. Fisher: --No, it does not.

It requires a--

Justice Scalia: Do you think that's unconstitutional?

Mr. Fisher: --No, Your Honor.

And I think if anyone thought that the treason laws were implicated here, you might have different parties before the Court.

Justice Scalia: Do you think treason is worse than child rape?

Mr. Fisher: Well, Blackstone thought treason was more serious than murder.

It has traditionally been the most serious crime that a person can commit, and I think historically, as well at nationally, that is still the sentiment that is shared.

Chief Justice Roberts: But we're talking about--

Mr. Fisher: Now--

Chief Justice Roberts: --if were talking about evolving trends, I think it's fair to say that society's recognition of the seriousness of the crime of rape has evolved even since, the period since Coker.

Now isn't that something that we should take into consideration?

Mr. Fisher: --I--

Chief Justice Roberts: It certainly involved... evolved since the time of Blackstone and even since... as I say, even since Coker.

So while Coker may have thought rape of an adult wasn't serious enough to warrant the death penalty when the legislature had made a contrary determination, perhaps that would be addressed differently if... differently today; and certainly rape of a child would be understood not to be not included in Coker's analysis.

Mr. Fisher: --Well, I don't think societal attitudes have changed very much.

But to the extent any of it has, what this Court said in Atkins is you look to the expertise of professional organizations; and I think it is relevant here that if the State stands up and says well, the reason why we are doing this is because of more enlightened attitudes about the harm that occurs in child rape, all of the professional organizations sex assault groups, social workers, and the like that deal with that crime, like here in the amicus--

Justice Alito: The plurality opinion in Coker said this: Life is over for the victim of the murderer.

For the rape victim, life may not be nearly so happy as it was.

Now, you think that's something that would be written today?

Mr. Fisher: --Perhaps not.

I don't know.

I mean, this Court chooses its words... other parts of the Coker decision I think make clear that the Court understood that rape was an extraordinarily serious crime.

Justice Ginsburg: There was, at least in the amici briefs in Coker... may not have been explicit in the Court's decision... but the argument was made that the rape law in question, the Georgia law, came from an earlier tradition when a woman was regarded as as good as dead once she was raped; and the crime was thought to be an offense against her husband or her father as much as it was to her.

And that was the background of Coker, plus the racial element in it was very strong.

I imagine that that... if the question were... the Coker question were to come up again, those would still be factors.

I mean, the notion was that making rape equivalent to murder was no kindness to women, because it said once you've been raped, you're spoiled.

That's not... there's no parallel with child rape.

So I think that what was going on under the surface in Coker is quite different.

Mr. Fisher: Justice Ginsburg, I think, although not with the same historical pedigree, the same argument is being put forward by the State today, that by definition, for a child to have been raped is tantamount to having been killed, and the social workers and sex assault experts here today I think are telling you with this one voice, we very much want to avoid sending--

Justice Ginsburg: But it isn't... it isn't the notion that she's somebody else's property; and... which was the history of the rape statutes.

Mr. Fisher: --I think that's fair enough, Justice Ginsburg, but I think also I'd like... perhaps Justice Alito was right, that looking at the Court's opinion gives us the best indication of the analysis; and I think the parts that you were reading are from the earlier part of the opinion where the Court was saying that rape in general is not as serious as murder, but the end of the plurality win in Coker is very emphatic.

It says, that doesn't end the question, because we have two very serious aggravating circumstances and this is a particularly serious incident of rape.

Even then, the Court's words were, that does not change the fact that the victim is not killed.

So that is--

Chief Justice Roberts: Coker, of course, repeatedly in the statement of the facts and the analysis, repeatedly referred to the victim as an adult woman.

It seems to me the Court was taking... was being very careful to leave open the question of what would be the analysis in the case of a child.

Mr. Fisher: --We don't argue otherwise.

We understand Coker says adult woman.

What we're saying is that the rationale of Coker, and not just the rationale requiring somebody to have died, but also the objective rationale in Coker, of saying we understand in the past four, five years, there's been a handful; of States that have come forward with laws like this but we nonetheless find a national consensus against it.

Look at the numbers in Coker.

You had 30 people on death row over the span of five or six years for rape, as compared to this case, you have two people on death row over a span of 13 years.

Even the practices on the ground indicate quite strongly that society and even Louisiana... look at Louisiana where in direct contrast to the way they prosecute murder cases, in which it is common for the prosecution to take the position that the death penalty is the only appropriate punishment for this crime, they offer life imprisonment.

They've offered life in prison in every single child rape case they've prosecuted in the in the last 13 years.

The only reason you have Patrick Kennedy here today and one other offender on death row is because they insisted on their innocence.

If there are no further questions, I--

Justice Kennedy: Mr. Fisher, your white light is on, and you do want to protect your rebuttal right, but you began by indicating that this statute could be narrowed.

It could be narrowed by a requirement of recidivist behavior.

Are there any other narrowing categories?

Mr. Fisher: --Well, I think there are two ways to decide this case on more narrow grounds, I'll offer this answer to your question.

First, this Court could say that Louisiana is the only State that doesn't require recidivism, so it fails the substantive Tison Roper analysis.

It could also say that... that Louisiana's law isn't sufficiently narrow.

Yes, Justice Kennedy, I think if the question is could there be another particularly heinous circumstance that you, just in the context of narrowing would be enough, one might imagine other aggravating circumstances.

Coker wouldn't be--

Justice Scalia: Well--

Justice Kennedy: What would they be?

Mr. Fisher: --One could imagine something like torture or extraordinarily serious harm in a case, something like that.

But again, that would--

Justice Scalia: --How do you do view recidivism?

I mean, I assume even if you don't oppose the death penalty, you're going to get a good number of years, right?

So you are going to be 40 years in prison, come out and do it again?

I don't think so.

Mr. Fisher: --I'm not sure what the question is.

Justice Scalia: I mean, it is an unrealistic condition that you have raped a 12-year... a child twice.

The first time you do it and are convicted of it, you'll be sent up for long enough that you won't have the chance to do it a second time.

Mr. Fisher: I think that's right, Justice Scalia.

Perhaps the States want to speak to that.

They're the ones that put it in their law.

But it reinforces--

Justice Ginsburg: It was 25 years, right?

Mr. Fisher: --Yes, in Texas and a couple of other States.

I think it reinforces the fact that they think that by and large child rape is not serious enough even in those States to trigger the death penalty, and so they're looking for an extraordinarily small class.

If there are no further questions, I'll reserve my time.

Argument of Juliet L. Clark

Chief Justice Roberts: Thank you, Mr. Fisher.

Ms. Clark.

Mr. Clark: Mr. Chief Justice, and may it please the Court: This case involves the very savage rape of an 8-year-old child by her stepfather.

He raped her so brutally that he tore her entire perineal opening from her vaginal opening and to her anal opening.

He tore her vagina on the interior such that it separated partially from her cervix and allowed her rectum to protrude into her vagina.

Invasive emergency surgery was required to repair these injuries.

It is Louisiana's position that the cruel and unusual punishment clause of the Eighth Amendment does not preclude the State of Louisiana from--

Justice Stevens: Could you just clarify about the... were those injuries permanent?

Mr. Clark: --Your Honor, those injuries, after surgery they did heal.

So the surgery was required to repair them.

Justice Stevens: They were not permanent injuries.

Mr. Clark: In the sense that they healed, that's correct, Your Honor.

But I think that was a performance injury inflicted upon a child wants... just psychologically and mentally as well as physically.

As an initial matter, I would like to address the Coker question.

I think that it is quite clear that Coker was limited to the rape of an adult woman.

There are at lease 14 separate references in the opinion to an adult woman or to an adult female.

The only reference--

Justice Kennedy: Both... both sides have something of a dilemma with Coker, because if you say that it does not control this case, then the consensus or the lack of consensus... or the consensus is more reliable.

If you say it does control this case, then the consensus is not so reliable; and both sides have that duality that they have to confront.

Mr. Clark: --Yes, Your Honor, I understand that... that sort of a tension, Justice Kennedy, and I think for the defendant, he's the one asking the Court to create this broad categorical restriction and he's saying that it clearly precludes it.

At the same time he's saying that States have... have responded to... to Coker, that somehow that... the fact that there's not a greater existence of the rape of a child rape laws is somehow not controlled by the fact that it has been misinterpreted, and he point out in his brief several instances of courts where they specifically misinterpret that holding.

Justice Breyer: There is no... there is doubt in my mind that this particular kind of crime has not been the subject of a Supreme Court opinion.

My problem is I can think of many, many awful, truly horrible circumstances that categorized in many different... under many different criminal statutes; I'm not a moralist.

I'm a judge.

As a judge, I look at the law.

It seems for 43 years, no one has been executed but for murder.

Moreover, this Court has never approved the execution for any crime other than murder in those 43 years.

Right.

If I accept your argument, since I'm not a moralist, since I can think of horrible things all over the place, have I then opened the door so that, in fact, States will find lots of different crimes which are seriously horrible; and suddenly, we will be in the business of creating under the Constitution some kind of highly complex categorization, really a moral categorization of crime, method of commitment, method of, et cetera, et cetera.

Mr. Clark: Your Honor, I think the Constitution by only precluding cruel and unusual punishment leaves open the possibility that there are certain crimes that by their nature are so heinous that the death penalty--

Justice Breyer: So the answer is yes?

Your answer is if we take your position and that's... I'm not saying it's not a good argument, just take your position, but if we take your position, I can think of instances of kidnapping; I can think of instances of torture.

I can think of instances all over the place which are truly horrible.

But then to take your position, what we're going to do is we are going to say legislatures all over the country do have the right under the Constitution to go, try to categorize horrible by horrible, not just death.

Not just murder.

Justice Scalia: Just the way they used to.

Mr. Clark: --Exactly, Your Honor.

Justice Breyer: Perhaps at the time, 200 years ago, that's true.

[Laughter]

Mr. Clark: I think we have to recognize that with child rape there is something very unique and horrible about this crime.

It's not true of every kidnapping.

It's not true--

Justice Breyer: And it's not true... I've read the definition of section 41 of rape under the Louisiana code.

I won't repeat it but it's very broad.

And it can broad in the sense that rape itself can include a vast number of instances of child molesting, each of which is bad; but there are degrees.

So I suppose that child molesting of all those kinds that are listed in 41 (c)(1) and (2), which you know I'm sure, would count as rape if committed on a person under 12.

Some are absolutely horrible.

Some are just bad.

But that's what the other side means when he says it gives tremendous discretion to the prosecutor to pick and choose who should be executed needs further narrowing.

What's your response.

Mr. Clark: --Your Honor, I'm slightly confused as to what you're referring to in terms of a wide variety of acts, because Louisiana Revised Statute 3 14: 42 that Patrick Kennedy was convicted under, it only provides that he could be convicted of aggravated rape of a child under 12 where he had anal intercourse or vaginal intercourse with that child.

Those are the only two methods--

Justice Breyer: Those are the only two.

So these other things don't count.

Mr. Clark: --Exactly, Your Honor.

Justice Breyer: Thank you.

Mr. Clark: Only anal or vaginal rape.

And I would submit that that is in itself a very narrow crime.

This is fundamentally different, I think, from homicide, where in homicide the narrowing was required because homicides were committed under circumstances where the offender himself perhaps lacks intent to kill traditionally, but accidentally committed the murder during the course of another felony.

Or where the offender himself acted with reckless disregard but another person committed it during the course of the felony.

So there was a wide variety of intents with which the crime was committed.

There was a wide range of circumstances under which the crime was--

Justice Scalia: Ms. Clark, what do you do with the requirement that our cases have imposed?

It is not a requirement I agree with, but it is certainly one our cases have imposed, that you cannot leave... leave it to the jury whether to impose the death penalty or not even for murder, but rather you have to narrow the class of people who have committed that particular crime so that... so that the imposition won't be random.

Although later, we say you have to let the jury consider any mitigating factory which makes it random; but nonetheless, our cases do say you have to narrow the class of murderers who can be given the death penalty.

Wouldn't the same apply to the class of child rapists?

Mr. Clark: --No, Your Honor.

I think the--

Justice Scalia: Why not.

Mr. Clark: --The point that I was trying to make about murder about the category being so broad, the class being so broad, the range of actions being so broad that when the Court was looking at... in Furman... what kind of homicides... how do we know whether... why this person is getting the death penalty and why this person isn't, what is the standard that guides it, they were looking at situations where murders like the... ini Furman his actions were described as tripping over a wire as you left the house and accidently shooting the homeowner through the front door.

Justice Scalia: You think intentional murder of a... of a law officer would need no further narrowing?

Mr. Clark: That's correct, Your Honor.

In Louisiana law we define... we have deliberate murder, a law enforcement official, and that by the category of the victim that is at stake there that crime is narrowed, and that is provided for in Louisiana law.

Justice Souter: Excuse me.

Chief Justice Roberts: Why is it sufficient... why isn't it sufficient narrowing, even after Coker, that they make the death eligibility rape of a child under 12 as opposed to under 16?

Mr. Clark: That is.

That's further narrowing.

It is, Your Honor.

What I'm saying is it is not clear from this Court's jurisprudence that narrowing would be required in a non-homicide circumstance to begin with, especially one where here we have defined the offense so narrowly that it is... that under the law that Patrick Kennedy was convicted it was only children under 12.

Those kind of offenses, rapes under those circumstances are not committed accidentally.

They're never committed without some form of premediation and deliberation.

It's just something that is fundamentally and uniquely different for murder.

Justice Souter: May I go back to your... to your answer on the murder question?

And that was you said there's... there's a murder analog to this narrow definition, and you gave the example of the murder of the law enforcement officer.

And that raises a question that I had about how Lowenfield ought to be read.

The example that you gave was one of the five instances which the Court said out in the Lowenfield opinion quoting the Louisiana statute.

In each of those five instances, nothing need be proved except, as you have put it, the narrowing circumstance in the law enforcement officer in your example.

But under the Louisiana statute which passed muster in Lowenfield, there were five analogs of which the law enforcement officer was one.

Each of those crimes was defined as a killing with a specific intent to kill or specific intent to inflict great bodily harm.

And then in each one of these instances, there was an extra element added: Law enforcement officer, intent to kill more than three people in Lowenfield, and so on.

In fact, child under 12 was one of the examples.

It seems to me that the... one way to read the Louisiana statute there consistently with the... with the value that Justice Scalia's question raised is this: That Louisiana, in effect, had created a general crime of murder with specific intent to kill or inflict great bodily harm.

And then it had given five instances in which, as I put it a moment ago, there was an extra element: And that extra element, whether it be killing more than two people, whether it be killing a child under 12, law enforcement officer, functioned like the aggravating circumstance; so that, in fact, we didn't have a statute that merely said if you kill a law officer intentionally, that's capital, period.

What we had was a capital scheme that says if you kill with specific intent to kill or inflict great bodily harm, that's murder.

And if you commit one of these other five other elements, that narrows it down to capital murder.

Isn't that a proper way of reading the Louisiana murder statute from which you took your example?

And if it is, isn't that example inconsistent with the theory that you're arguing here that you can simply define child rape as capital and let it go at that?

Mr. Clark: No, Your Honor.

I think if I... if I understand what you're asking, with regard to murder again, murder traditionally is a very broad crime.

So, I think what Louisiana did is they defined murder to account for many ways in which it could be committed.

They labeled one class of them as being--

Justice Souter: I quite agree with that.

My point was just this: You made the argument... as I understood it a moment ago... that the Louisiana child rape statute is not unique; that, in fact, Louisiana defines other crimes very narrowly, so that you were making a different kind of argument.

You were saying we in Louisiana define murder of a law enforcement officer very narrowly.

No requirement to add any narrowing or aggravating circumstance there, and the statute passed muster.

And my point simply is, I don't think that's the way to read the Louisiana statute.

The Louisiana statute instead says killing with intent et cetera is... is capital murder if there is a further circumstance added to it; and five are given.

So all I'm saying is I don't think the fact that your capital murder passed muster under Lowenfield is authority for saying that the child rape statute passes muster here.

Mr. Clark: --Well, I agree with you on that, though I think that perhaps--

Justice Scalia: Do you?

Do you really?

Mr. Clark: --Well, not... I agree in the sense that--

Justice Souter: Well, let's find out how much.

[Laughter]

Justice Scalia: Didn't the... didn't the Louisiana statute that... that was at issue in Lowenfield produce the result that if you committed intentional murder of a law enforcement officer, it was up to the jury whether to give you the death penalty or not?

Mr. Clark: --Yes, correct, Your Honor.

Justice Scalia: Would not the same result be... be achieved by a statute that said if you intentionally kill a law enforcement officer, you are subject to the death penalty?

Wouldn't it be precisely the same degree of narrowing?

Mr. Clark: That's correct.

Yes, Your Honor.

Justice Souter: And isn't... isn't the difference... isn't the difference just what Justice Scalia brought up in an earlier question to Mr. Fisher?

He said what seems to count, the way we have targeted our jurisprudence, turns on how you define the class that is narrowed.

And my suggestion to you was that the class that is narrowed under your homicide statute is a class that consist of all killing with specific intent to kill et cetera, which is then narrowed by five different circumstances set out.

Here, the class is defined as child murder, and there is nothing in the aggravating circumstances, the possible aggravating circumstances that narrows it any more; and isn't that distinction correct?

Mr. Clark: I think, if I can address this perhaps without a specific yes or no, what I'm saying is the homicide statute draws specifically a large class and specifically narrows it.

The rape statute in itself narrowly defines the target group without making reference to the broader class.

I think is--

Justice Ginsburg: In one respect is broader, and perhaps whether it assists your position, Coker is a crime that could have only a female victim and a male perpetrator, but this child rape statute as I understand it could be the... the victim could, male or female; the perpetrator could be male or female.

Mr. Clark: --That's correct, Your Honor.

And actually, in Caddo Parish, the man who was convicted and sentenced to death there had a... had a female cohort, so to speak who was involved in the rape with him, who I believe has not been tried yet; but she participated in the rape with him, and therefore as a principal who with specific intent is alleged to have committed the offense as well.

So both male and female could be convicted of this offense, if he commits this offense, and both male and female children could be victims of this offense; that's correct, Your Honor.

I think that--

Justice Stevens: If you're looking for time, let me ask you one... one question that interests me but is a little divorced from the terms of the arguments so far.

I know it is not popular to refer to refer to international commentary on issues like this, but the English law lords have filed an amicus brief discussing the international principle that nations that retain the death penalty may not extend the death penalty to crimes to which it does not presently apply.

They suggest that as a matter of international law, there's sort of a correspondence to our evolving standards of decency that have generally governed our Eighth Amendment jurisprudence.

It's kind of a one-way rachet, we look at trends in one direction but we don't look to see if you suddenly have changed gears and go in the other direction.

Could you just comment on that argument?

Mr. Clark: --Well, first of all, I certainly recognize that there are approximately 28 international countries that would permit the death penalty for rape.

However, this Court in its jurisprudence has never, ever based its determination solely upon that factor.

In certain instances, the Court has looked to that to confirm its own decision in the matter, but it's never been controlling.

I would point out, though, Your Honor, if I may, that... that there are no... there are no treaties that are controlling upon the United States or this Court that would--

Justice Stevens: I'm not asking that.

I just used that as an analogy to our evolving standards of decency cases which has been part of our Eighth Amendment jurisprudence, that sort of is a... one way direction in which these cases go.

Do you think it's appropriate... are you aware of any case saying we can turn around and go in another direction?

Mr. Clark: --I think we can, especially where, as here, that turn-around, that determination is based upon a unique understanding of how this crime seriously, gravely affects children in a manner--

Justice Stevens: Do we know more about the crime now than we did 40 years ago?

Mr. Clark: --Well, I think that we do.

I think that that is solely reflected in the child pornography laws that have come about since then.

In Osborne versus Ohio, the Court said, after Coker, you can't even possess child pornography in the privacy of your own home.

So I think that... because it is so harmful.

And I think that that along with Megan's Law, I think that those sort of cases are also recognition of the fact that we now know more about this crime.

Justice Breyer: Can you... can you give me one second on my own error here, but I just traced the statute through.

What I did was I looked at section 42.

It says,

"aggravated rape is a rape committed upon, et cetera. "

and then it says

"where the victim is under the age of 13. "

Right.

So it doesn't say what rape is.

So I assumed it picked up the definition of rape from section 41.

And section 41 defines rape as anal or oral or vaginal sexual intercourse, and then in section three it defines oral.

Now am I right; is that the correct statutory thing, or is there some other statute?

Mr. Clark: That is the correct statutory thing.

Justice Breyer: All right.

Mr. Clark: I was trying to make this clear--

Justice Breyer: Then I go back to my if that is the right statutory thing, because it seems to cover, particularly in its definition of oral intercourse, a very wide range of child molesting, all of which I agree is quite bad, but it's still a very, very wide range.

Mr. Clark: --Well, I think that all sexual intercourse is... I think that's a pretty definite offense, despite--

Justice Breyer: I didn't say it wasn't.

Mr. Clark: --But also I would suggest that the point is here is that Patrick Kennedy was not convicted under that provision.

He was convicted under the earlier--

Justice Breyer: No, I mean, my question relates back to what Justice Souter was talking about, about the narrowing of the statute.

Mr. Clark: --Right.

Right.

I would agree that some of the definition of the offenses was narrower under the... terms that Patrick Kennedy was convicted under than it is today.

Justice Souter: What do you say about the effect of Enmund and Tison as a... as a means to understand how we ought to read Coker?

You know what I'm getting at.

Mr. Clark: Yes, Your Honor.

I believe in Enmund what the Court was looking at was, when the Court addressed the issue it didn't simply say a human life wasn't taken.

It went on to look at is robbery itself, the underlying offense, a crime serious enough to warrant the death penalty?

In Tison, the Court was trying to address what are the limits, I believe of the felony murder doctrine as applied to homicide when the defendant himself... what... what participation in the offense did he have to reach that level in which he would suffer the death penalty.

I think that's very different from a case like this where the offender absolutely committed the offense, where the offender absolutely does not act by accident or without premeditation or deliberation, and directly causes that terrible harm himself.

I think the verdict--

Chief Justice Roberts: Thank you, Ms. Clark.

Mr. Clark: --Thank you, Your Honor.

Argument of R. Edward Cruz

Chief Justice Roberts: Mr. Cruz?

Mr. Cruz: Mr. Chief Justice, and may it please the Court: Few evolving standards of decency are more pronounced that the growing understanding in modern society of the unique and irreparable harm caused by violent child rape.

From Jessica's Laws to Megan's Laws to the laws at issue here, elected legislatures have repeatedly acted to deter and to punish violent child rape.

In particular, the legislatures of seven States have determined that the very worst child rapists should be eligible for the most serious punishment.

I'd like to begin by talking about the effect of Coker.

And Justice Kennedy, you raised in particular the dual aspects of Coker.

What we suggest the effect of Coker is, is that it has been under a cloud of confusion.

A fair reading, a careful reading of Coker in my judgment, it's clear Coker does not reach this instance.

The Court bent over backwards to explicitly specify that it was adult rape, and indeed the question presented in the briefing in Coker not use the word adult rape at all.

It was phrased generally in terms of rape, and the Court repeatedly and I would suggest not accidently added the word adult.

But that being said, the States have operated since Coker under a great deal of confusion as to what exactly Coker meant.

And, indeed, in 1981 the Florida Supreme Court struck down their law believing that it was, quote, "compelled" by Coker.

And the State legislatures when they act today... in the State of Texas... Texas is the most recent State to even act one of these laws.

When the State legislature was considering it, the State legislature asked the Attorney General's Office for advice specifically on whether Coker allowed that.

And there's a great deal of confusion.

As Petitioner argues quite passionately, those that are opposed to the death penalty for child rape argue vociferously that Coker does not allow it, as Petitioner has done in many, many pages of briefing.

Justice Breyer: You started out by saying it's the worst cases of child abuse, and that's... child rape... and that's why I was interested in the definition.

It seems to me this definition simply covers all instances of some kind of physical intercourse with a child, including oral, vaginal, anal.

I can't imagine one that wouldn't be covered if the victim of this is under the age of 13.

Now, am I right in thinking it's not the worst instances; it's every instance of rape defined that way?

Mr. Cruz: You're not exactly right, Justice Breyer.

Justice Breyer: Thank you.

Mr. Cruz: The statute that is being challenged in this case was the pre-amended statute.

Justice Breyer: So the amendment--

Mr. Cruz: So oral was not in it.

And it wasn't 13; it was 12.

So the statute under which Patrick Kennedy was convicted was only vaginal or anal rape.

Justice Scalia: It was not all child rape.

Mr. Cruz: Exactly.

Justice Scalia: It was not all child rape.

It was only children up to the age of 11.

Mr. Cruz: That's exactly rate.

And so that was a substantial narrowing.

It was 11 and younger, and it was only vaginal and--

Justice Breyer: --Thank you.

I see.

Mr. Cruz: --And anal.

Beyond that, however, the juries that have considered this so far... and it has been a limited circumstance because of the distorting effect of Coker... but the juries that have considered this so far and the prosecutors that have prosecuted have shown every ability to distinguish truly egregious rapes.

Justice Kennedy: But there was some indication that in most cases the prosecutors, in part to see if they can get a plea bargain, begin by saying they're going to charge with the death penalty.

And I'd like you to comment on prosecutorial discretion.

Again, it cuts to weight.

In one sense, it's... it's a check, so that only the most egregious cases are covered.

On the other hand, there's a temptation to overreach, and it's an argument that Petitioners make for saying that the death penalty should not apply.

Mr. Cruz: Justice Kennedy, Petitioners assert that that is the case, that a plea bargain has been offered in every instance.

I'm not sure of the source of that assertion, but at least with respect to the State of Texas, we don't have information one way or the other in terms of the conduct of Louisiana prosecutors.

What we can say is that the cases that have been prosecuted... the two individuals currently on death row, Patrick Kennedy and Mr. Davis, committed crimes that are just unspeakable.

And in both of them, they were not children that were close to the age; they were in this case an eight-year-old little girl; in Patrick Kennedy's case, a five-year-old child.

They were crimes that were... and that's part of the evolving concept of decency.

Part of the reason the States are acting is, in modern times, we're seeing crimes that 20, 30, 40, years ago, people wouldn't imagine.

We're seeing predators that seek out young children and do abominable things to them.

And that's why legislatures are acting.

I will point out Mr. Fisher speculated that if this Court made clear that Coker does not prevent a narrow statute focused at child rapists, he speculated that the States would not act.

I'm standing here on behalf of nine States.

There's an additional State, Missouri, that is implicated; there's the State of Louisiana.

You have 11 States.

And I say I find that speculation extremely difficult to believe.

Justice Breyer: Will you give us one sentence or two on the response to all the professionals who've commented in the briefs in saying the death penalty here will make this situation worse?

Mr. Cruz: Those professionals... that is their opinion on a difficult policy question.

The amici States are not here advocating that... that capital punishment for child rape is or isn't a terrific idea.

What we are advocating is that there is an evolving understanding of the enormous, unique, irreparable harms to children, and it's elected legislatures that can sit and listen to those advocates from the groups, listen to the empirical data, consider the deterrence effect... consider all of these and decide one way or the other.

I would fully expect, in time, some States would act to establish capital punishment and others would not.

And that that's precisely how the laboratories of democracy should operate.

With respect to the decisions, the prior decisions, that this Court has had in Atkins, in Roper, and aldo Tison and Enmund, I think all of those, as the Chief Justice suggested, are about culpability.

They are about saying... Atkins and Roper both dealt with a class of offenders that, for characteristics, had limited culpability.

In this instance, Patrick Kennedy is a 300-pound man who violently raped an eight-year-old girl.

On any measure, he is exquisitely culpable.

And the question, as this Court put it in Roper, as to the Eighth Amendment inquiry as to the death penalty is whether the offender can be reliably, quote,

"be classified among the worst offenders. "

Under almost any analysis, someone who commits the sort of unspeakable crime that Patrick Kennedy commits is reliably classified among the worst offenders.

I would point out... a question Justice Stevens asked, you know, has any nation internationally gone backwards?

It's interesting if you look at the history in England.

England actually has gone back in force.

Blackstone actually talks about how rape under Saxon law was punishable by death, and then there was a period 1285 where the punishment was relaxed to loss of the eyes and testicles.

That was William the Conqueror's kinder, gentler version.

[Laughter]

And Blackstone describes, quote,

"That previous lenity being productive of the most terrible consequences, it was subsequently necessary to return to making it a capital offense. "

And so England had that history.

It is not presently a capital offense in England.

Justice Stevens: But has that sort of a different direction from evolving standards of decency occurred at all since we first announced the evolving standards of decency and jurisprudence in this Court?

Mr. Cruz: I'm not aware of a decision doing so, but the analytical predicate for the evolving standards of decency... this Court said over and over again the most reliable indicium is the objective judgment of elected legislatures.

And in this instance, the legislatures--

Justice Stevens: But what about the comment on the international community's view that it is really a one way rachet?

MR. CRUZ: You know, the Law Lords' brief... I have to admit personally I found really quite astonishing, and I was harkened back to some of the issues this Court considered in the Medeillin case because the Law Lords' brief argued that the United States... that this Court has no ability to determine that any other crime is subject to the death penalty.

And there were two bases: One was a treaty that the United States has never ratified.

And secondly was this inchoate international law understanding that, because other nations have made a policy determination about the death penalty, that it is forbidden to the U.S. Congress, it is forbidden to the States of the United States, and it is forbidden to this Court to ever acknowledge there is a crime that is consistent with our Constitution.

That brief, to my mind, embodied all of the dangers of the very broad arguments that we're being presented in Medeillin, that ultimately the Constitutional and the people of this country determine what is permissible and what is lawful.

This Court has chosen to look to other nations for guidance, but that brief didn't say this is guidance.

That brief said the United States is foreclosed from ever doing this because other nations have made determinations under their law.

Justice Kennedy: If you were asked to draft this statute that we have here and you have just the definition of the first statute with the... what we call aggravated kind of... and you have the age limit, would any other limiting categories occur to you as being inconsistent with sound statutory drafting and sound policy?

Mr. Cruz: --Justice Kennedy, there are three possible narrowing factors that occur to me.

We would submit the statute is sufficiently narrow as drafted, but beyond that, the one that has been... the four States that have most recently acted have used recidivism as a narrowing factor.

Justice Kennedy: And that's prior conviction--

Mr. Cruz: Prior conviction.

Justice Kennedy: --not prior offenses?

Mr. Cruz: Correct.

There are two other narrowing... narrowing aggravators that could be applied.

One would be especially heinous or vile rapes.

The aggravated rape that Justice Powell discussed in his Coker opinion, a really brutal case, which both Florida and Georgia have... I would note Petitioner says Patrick Kennedy could not be convicted in any other State.

In Florida and Georgia, if they concluded that his violent rape requiring surgery to correct was especially violent and heinous, he could be convicted in either of those States.

Or, finally, there could be, as in Lowenfield, an aggravator for multiple victims.

Some of the worst of these child rapists rape more than one child.

And so that is another potential aggravator that a State could choose.

Rebuttal of Jeffrey L. Fisher

Chief Justice Roberts: Thank you, Mr. Cruz.

Mr. Fisher, we'll give you five minutes.

Mr. Fisher: I would like to address first the narrowing component of this case and then turn to the idea of trends on the first question presented.

First, the reasons for this Court's narrowing jurisprudence is to avoid a situation in which a few, only a few offenders out of a vast pool are given the death penalty, and there's no legal principled explanation to describe why those offenders get the death penalty.

Ms. Clark says that Louisiana's law is narrow.

Well, if you just look at empiric, as best as we've been able to gather statistics and Texas has some similar statistics in its brief, we're talking about under Louisiana's definition of child rape about five times as many individuals per year as are convicted of deliberate murder.

This is enormous class.

And what you end up with is only one every several years getting the death penalty.

That is the definition of arbitrary and capriciousness.

Justice Breyer, Mr. Cruz is right, Louisiana Supreme Court at 58(a) addressed... addressed... as existed at trial, it included oral rape.

I'm not sure exactly under ex post facto which is the operative one or not, but it doesn't matter because even the anal or vaginal component statute still gets you five times as many... than just absolutely being struck by lightning.

Even in Louisiana simply consensual sex between an 18-year-old and a 12-year-old is a capital offense.

And so we don't think Louisiana's law sufficiently narrows.

Mr. Cruz says--

Justice Kennedy: Is that in front of us here?

Mr. Fisher: --It is with respect to narrowing, because Mr. Cruz... the only answer to that, I think is what Mr. Cruz--

Justice Kennedy: This is not a speech case where you have standing to object to the statute that can... would be unconstitutional as applied to others--

Mr. Fisher: --We absolutely do--

Justice Kennedy: --Or is... contradicts.

Mr. Fisher: --There's square precedent, unanimous holding of this Court in Maynard against Cartwright so that you can't justify a statute that fails to narrow on as applied grounds.

The constitutional infirmity is the fact that it gives unfettered discretion to prosecutors and juries to choose who to give the death sentence to.

Justice Scalia: I don't understand the difference.

If you have a general murder law with an aggravating factor of killing of a law officer, okay, the jury can decide from the whole category of killings of law officers who gets the death penalty and who doesn't.

Why is that any different from what happens when you have a statute that makes it a capital offense to kill a law officer, without any further qualification?

It's exactly the same result.

It goes to the jury.

This person killed a law officer.

It is up to you whether you give him the death penalty or not.

Mr. Fisher: At the end of the day the jury has discretion.

But the difference between that case and this case is that you have a much smaller pool of offenders and a much higher likelihood the jury is going to return death.

Here you have have a vast pool and literally persons one out of every several years getting the death penalty.

If I could say a thing... two things about the trend argument that the states have putting forward?

First, remember there's no trend whatsoever with respect to non-recidivists.

The other states that have passed laws in child rape context for capital... making it a capital crime and even in the Meagan law and others is all about recidivism.

Louisiana is not part of that trend.

Louisiana stands alone.

Chief Justice Roberts: --I thought... the bulk of your argument, though, it seems to me, would not... would be the same in a recidivist case, because, of course, that doesn't result in death either.

Mr. Fisher: I think--

Chief Justice Roberts: I mean, I don't... it is sort of a factual distinction but I don't see how it helps your argument.

Mr. Fisher: --Well, it would give you a narrower way to do this case.

You could say that under the analysis... Roper actions Louisiana stands alone in terms of what is national consensus.

In Enmund this Court said that it is not enough for other states to make the basic crime a capital offense.

We look to see whether if the other states require an aggravating circumstance, that the State before the Court does not; an aggravating circumstance that makes the offender more culpable or the crime more serious.

We exclude those states from our bean counting analysis.

Chief Justice Roberts: I'm not sure that the sort of trends that they look to in Roper and Atkins... I mean, you had different crimes that carried the capital punishment as well.

I don't think we're looking at trends in that regard.

Mr. Fisher: If we're looking at trends, perhaps I can leave you with this: Again, remember what we have in terms of a trend.

All we have done in the past 30 years is returned to the place that we were years ago in Coker.

In Coker when you read that opinion, six states make child rape a capital offense.

Through all the might and effort of proponents of these laws, what they've been able to accomplish over 31 years is to bring it back exactly where we were in Coker this.

This Court's whole Eighth Amendment jurisprudence is based on the idea that a few states may well have laws making something a capital crime and may choose to be outliers, but the very notion of this Court's proportionality jurisprudence is that when states are outliers, and especially in a case like this, when even are those outlier states impose the death penalty so rarely and freakishly, that is a situation where the Eighth Amendment does not tolerate it.

Chief Justice Roberts: Thank you, Mr. Fisher.

The case is submitted.