The Evolution of Justice Kennedy’s Eighth Amendment Jurisprudence on Categorical Bars in Capital Cases

Death penalty cases are inevitably controversial.The crimes committed are shocking and the public reaction is strong.On a legal level, the cases are also difficult.They cause stress on the judicial system and raise complex constitutional issues.With such strong emotional content and complicated legal issues, it is important to have consistency of approach and predictability of analysis from the courts.Justice Kennedy has become a leader in the consistent application of Eighth Amendment analysis to some of the most challenging issues in the death penalty field.This Article examines Justice Kennedy's jurisprudence and leadership in cases involving "categorical bars" to the death penalty.When Justice Kennedy was appointed to the United States Supreme Court in 1988, the Court had already decided Furman v. Georgia (1972), 1 Gregg v. Georgia (1976), 2 and Woodson v. North Carolina (1976).3 These three cases were the initial steps towards framing an approach to interpreting the Eighth Amendment in death penalty cases.In Furman, the Court invalidated death penalty statutes primarily for arbitrariness in imposing death sentences.4 In Gregg, the Court upheld three death penalty statutes passed in response to Furman. 5 In Woodson, the Court struck down mandatory death sentences.6 As a result of these cases, states established death penalty systems that narrowed those who were death eligible through aggravating circumstances and allowed for * Professor of Law and Director, Legal Infrastructure and International Justice Institute, University of the Pacific, McGeorge School of Law.I would like to thank the McGeorge Law Review for organizing the symposium on Justice Kennedy's jurisprudence and for the opportunity to participate in the program.It has been an honor to meet and talk with Justice Kennedy during the years that I have taught at Pacific McGeorge.I would also like to thank my research assistants, Andrew Ducart, Rebecca Tatum White, and Jacquelyn Hassell, for their excellent work on this project.1. 408 U.S. 238 (1972).2. 428 U.S. 153 (1976).3. 428 U.S. 280 (1976); see also Roberts v. Louisiana, 428 U.S. 325 (1976) (decided at the same time and dealt with the same issue as Woodson).4. 408 U.S. at 256-57 (Douglas, J., concurring).5. Gregg, 428 U.S. at 207. 6. 428 U.S. at 305. 09_CARTER_VER_01_6-18-12_FINAL.DOC (DO NOT DELETE) 7/22/2013 2:38 PM / Eighth Amendment Jurisprudence on Categorical Bars in Capital Cases230 individualized consideration through mitigating circumstances.7 Both narrowing and individualization were conceived as ways in which to eliminate the arbitrariness or unreliability in the decision on who would live and who would die.However, the storm of death penalty cases was just beginning.Cases challenging many aspects of the death penalty have come before the Court each term.Issues arose, for example, regarding the vagueness of aggravating circumstances, 8 preclusion of mitigating evidence, 9 voir dire of capital jurors, 10 racial impact of the death penalty, 11 admissibility of victim impact evidence, 12 and ineffective assistance of counsel.13 In each case, the Court faced the need to interpret the Eighth Amendment.Among the cases coming before the Court were ones challenging whether certain crimes or certain classes of defendants could constitutionally be subject to the death penalty.These are the cases that involve "categorical bars."For example, prior to Justice Kennedy's appointment to the Court, the Court held that the death penalty could not be imposed for rape of an adult woman in Coker v. Georgia (1977).14 The Court also held that there was a categorical bar in certain felony-murder situations in which the defendant was not the actual killer in Enmund v.Florida (1982) 15 and Tison v. Arizona (1987).16In these early decisions, the Court began developing a two-prong test to evaluate when the death penalty was categorically barred for a particular crime or class of defendants.The Court refined this test into its current form in the course of various cases, including three important cases that came before the Court after Justice Kennedy was appointed.17 The test draws upon a basic proportionality principle in the Eighth Amendment as interpreted through "evolving standards of decency."18 Evolving standards of decency is determined by assessing two prongs: (1) objective evidence of the values of contemporary society (often