Opinions of the Court


Argument: April 16, 2008
Decision: June 25, 2008
Modified: Oct. 1, 2008

The U.S. Supreme Court struck down as unconstitutional a Louisiana statute that allowed the death penalty for the rape of a child where the victim did not die. In Kennedy v. Louisiana, the Court held that all such laws, where the crime against an individual involved no murder were not in keeping with the national consensus restricting the death penalty to the worst offenses. As a result, the only two people sentenced to death for this crime in the modern capital punishment era no longer face execution. Both were sentenced under the Louisiana statute that was found unconstitutional. No one is on death row for any offense not involving murder.

The Court noted that the defendant, Patrick Kennedy, had been sentenced to death under a law that was not embraced by 44 out of the 50 states. Justice Anthony Kennedy, writing for the 5-4 majority, stated, “Based both on consensus and our own independent judgment, our holding is that a death sentence for one who raped but did not kill a child, and who did not intend to assist another in killing the child, is unconstitutional under the Eighth and Fourteenth Amendments.”

The Court pointed to the danger in laws such as Louisiana’s, which allowed the death penalty where no murder was committed: “When the law punishes by death, it risks its own sudden descent into brutality, transgressing the constitutional commitment to decency and restraint.”

Victims’ groups and child advocates had concluded that the death penalty for child rape could actually harm children, rather than protect them. Some of the reasons they cited included a possible decrease in reporting, re-victimization through the lengthy appeals or re-trials, and that equating rape to murder sends the wrong message to child victims.

Read the decision: Kennedy v. Lousiana, 07-343 U.S. (2008)).

UPDATE: The Court asked the parties to brief the issue of whether a rehearing should be granted and, if granted, how the Court should rule following a petition from Louisiana noting that the Court had failed to take into account the capital crime of child rape under military law. The federal government has also been asked to submit a brief on this issue. A decision on whether to rehear the case is expected by the end of September.

UPDATE: The Court denied Louisiana’s petition for rehearing on Oct. 1, 2008 and slightly modified its Opinion and that of the dissent. See 2008-09 Term/Orders.

The Court last considered a related case in 1977 when it prohibited capital punishment for the rape of an adult in Coker v. Georgia. While the case did not specifically address the rape of children under the age of 12, “the decision has been widely understood as limiting the death penalty to the crime of murder,” according to The New York Times.

Five other states had laws allowing the death penalty for a sexual assault against a minor, though no one has been sentenced to death in those states (Montana, South Carolina, Oklahoma, Georgia, and Texas). Both the National Association of Criminal Defense Lawyers and a group of organizations and individuals that work with sexual assault victims filed briefs on Kennedy’s behalf, with the latter group concerned that acceptance of the punishment will further dissuade sexual assault victims from reporting the crime.

(See “Justices to Decide if Rape of a Child Merits Death,” by Linda Greenhouse, The New York Times, January 5, 2008). See also DPIC’s Kennedy v. Louisiana resource page.


  1. Whether the Eighth Amendment’s Cruel and Unusual Punishment Clause permits a State to punish the crime of rape of a child with the death penalty.
  2. If so, whether Louisiana’s capital rape statute violates the Eighth Amendment insofar as it fails genuinely to narrow the class of such offenders eligible for the death penalty.

INDIANA V. EDWARDS, No. 07-208 (non-capital)

Argued: March 26, 2008
Decided: June 19, 2008

On June 19, 2008, the Supreme Court ruled in a 7-2 vote in the case of Indiana v. Edwards that it is constitutionally permissible for states to insist on representation by counsel for mentally ill defendants who have already been found competent to stand trial. The case, argued on March 26, 2008, revolved around Ahmad Edwards, who was charged with attempted murder during a robbery. Mr. Edwards was found incompetent to stand trial three times, but eventually was determined to be competent and sought to represent himself at trial. He was denied this request by the trial judge on the grounds that he continued to suffer from schizophrenia. When Mr. Edwards appealed following a guilty verdict in his second trial, Indiana’s intermediate appellate court ruled that he had been unjustly denied his constitutional right of self-representation and ordered a new trial. Indiana’s Supreme Court upheld this decision.

In ruling that a state can deny a defendant’s request to represent himself at trial, the Court indicated that the trial judge assigned to a case is the most capable person to determine whether a defendant’s level of mental illness precludes him from being able to present his own defense.

In the dissenting opinion, Justice Scalia wrote that a state does not have the power to deny the constitutional right of self-representation provided by the Sixth Amendment. He argued that if a defendant voluntarily waives his right to counsel, he has a constitutional right to present his own defense despite the harm it may cause his case. In addition, allowing trial judges the ability to deny self-representation without any clear guidelines provides incentive to appoint counsel rather than allow a defendant to represent himself in order to avoid the challenges tied to a less professional defense.

BAZE V. REES, No. 07-5439

Argument: January 7, 2008
Decided: April 16, 2008

The Court agreed on Sept. 25, 2007, to consider the constitutionality of lethal injections as practiced in Kentucky. The Justices heard arguments in January 2008 regarding a challenge filed by two death row inmates, Ralph Baze and Thomas Clyde Bowling, Jr. The two men sued Kentucky in 2004 claiming that the state’s lethal injection process amounts to cruel and unusual punishment, noting that the procedure can inflict unnecessary pain and suffering on the inmate. The Kentucky Supreme Court upheld the constitutionality of the state’s lethal injection system. In a previous ruling (Hill v. McDonough (2006)), the U.S. Supreme Court allowed death row inmates to contest the lethal injection process by filing civil suits separate from an inmate’s appeal. See Lethal Injection. Read Baze’s petition for certiorari. (Associated Press, September 25, 2007).

Questions Presented:

I. Does the Eighth Amendment to the United States Constitution prohibit means for carrying out a method of execution that create an unnecessary risk of pain and suffering as opposed to only a substantial risk of the wanton infliction of pain?
II. Do the means for carrying out an execution cause an unnecessary risk of pain and suffering in violation of the Eighth Amendment upon a showing that readily available alternatives that pose less risk of pain and suffering could be used?
III. Does the continued use of sodium thiopental, pancuronium bromide, and potassiumchloride, individually or together, violate the cruel and unusual punishment clause of the Eighth Amendment because lethal injections can be carried out by using other chemicals that pose less risk of pain and suffering?

From the day after certiorari was granted, all executions in the U.S. have been stayed.

DECISION: On April 16, 2008, the Court ruled that Kentucky’s three-drug protocol for carrying out lethal injections does not amount to cruel and unusual punishment under the Eighth Amendment. Thirty-five of the 36 states with the death penalty and the federal government use lethal injection as their primary method of execution. Seven Justices wrote opinions in the case, indicating that the Court is far from a consensus about how to resolve additional challenges that are likely to arise.

Kentucky had conducted only one execution by lethal injection, and so the Court had only a limited record before it on which to judge the risks of severe pain from this process. In other states, including California, Missouri, and Tennessee, federal courts, with a different record before them, had found lethal injection procedures to be unconstitutional. According to Chief Justice John Roberts’ opinion, litigants in other states will have to show there is a risk of severe pain that could be avoided by readily implementable and feasible alternatives that would significantly reduce the risk. Two Justices concurred with Roberts’ opinion, though six Justices concurred in the judgment upholding Kentucky’s law. Justices Ginsburg and Souter dissented, saying that the case should have been remanded back to Kentucky for further review of alternatives to the present protocol.

Justice John Paul Stevens concurred in the Court’s judgment, but wrote separately, questioning the constitutionality of the death penalty in general:

I have relied on my own experience in reaching the conclusion that the imposition of the death penalty represents “the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes. A penalty with such negligible returns to the State [is] patently excessive and cruel and unusual punishment violative of the Eighth Amendment.” (quoting J. White, Furman v. Georgia).

Justice Stevens also indicated that the current case does not resolve the entire issue of lethal injections:

I assumed that our decision would bring the debate about lethal injection as a method of execution to a close. It now seems clear that it will not. The question whether a similar three-drug protocol may be used in other States remains open, and may well be answered differently in a future case on the basis of a more complete record. Instead of ending the controversy, I am now convinced that this case will generate debate not only about the constitutionality of the three-drug protocol, and specifically about the justification for the use of the paralytic agent, pancuronium bromide, but also about the justification for the death penalty itself.

(L. Greenhouse, “Justices Uphold Lethal Injection in Kentucky Case, ” N.Y. Times, April 17, 2008). Read the opinion.


Argued: October 10, 2007
Decided: March 25, 2008

On April 30, 2007, the Court agreed to hear the case of Medellin v. Texas. Jose Medellin is a Mexican citizen on Texas’ death row who filed suit in the International Court of Justice (ICJ) because he had not been afforded his rights under the Vienna Convention on Consular Relations. The Vienna Convention is an international treaty, ratified by the U.S., that gives foreign nationals who are accused of a crime the right to contact the consulate of their home country. Medellin and the other Mexicans were not informed of this right. He and 50 other Mexican nationals won their suit in the ICJ, which ordered U.S. courts to review the cases (Avena). Texas refused to review Medellin’s case and he petitioned the U.S. Supreme Court for relief, and it agreed to hear his case. Before the case could be decided, however, President Bush ordered the respective state courts to provide the review required by the ICJ. The Supreme Court then dismissed Medellin’s case to allow time for this review. Texas courts again refused to grant such a review, claiming that President Bush did not have the power to give such an order. Medellin again appealed to the Supreme Court, which granted certiorari on the following questions:

1. Did the President of the United States act within his constitutional and statutory foreign affairs authority when he determined that the states must comply with the United States’ treaty obligation to give effect to the Avena judgment in the cases of the 51 Mexican nationals named in the judgment?
2. Are state courts bound by the Constitution to honor the undisputed international obligation of the United States, under treaties duly ratified by the President with the advice and consent of the Senate, to give effect to the Avena judgment in the cases that the judgment addressed?

The U.S. government filed a brief with the Court urging it to take Medellin’s case. (Medellin v. Texas, No. 06-984; see N.Y. Times, May 1, 2007).

DECISION: On March 25, 2008, the U.S. Supreme Court ruled 6-3 in Medellin v. Texas (No. 06-984) that the President does not have the authority to order states to bypass their procedural rules and comply with a ruling from the International Court of Justice (ICJ). Before the case could be decided, President Bush ordered the respective state courts to provide the review required by the ICJ. The U.S. Supreme Court then dismissed Medellin’s case to allow time for this review. Texas courts again refused to grant such a review, claiming that President Bush did not have the power to require this action of the courts. The U.S. Supreme Court took Medellin’s renewed appeal but agreed with the Texas courts in this most recent decision, stating that the Vienna Convention was not “self-executing” and Congress would have to make the treaty binding in the U.S. courts. Furthermore, the Court held that the rulings of the ICJ are not binding on U.S. states when they contradict the states’ criminal procedures.

Chief Justice John Roberts, writing for Justices Samuel Alito, Jr., Anthony Kennedy, Antonin Scalia and Clarence Thomas, authored the majority opinion. Justice John Paul Stevens concurred in the result, writing separately. Justice Stephen Breyer dissented, joined by Justices Ruth Bader Ginsburg and David Souter. (“States win over President on criminal law issue,” by Lyle Denniston, SCOTUS Blog, March 25, 2008). Read the Opinion of the Chief Justice.


Oral argument on December 4, 2007
Decided on March 19, 2008

On June 25, 2007, the Court agreed to review a capital case from Louisiana in which an all-white jury sentenced a defendant to death. All five qualified African-Americans had been struck from the jury pool by the prosecution using peremptory challenges. The defense has challenged the selection of the jury as a violation of equal protection. The defendant, Allen Snyder, is black and was convicted of killing his wife’s male companion in a trial that occurred within a year of the O.J. Simpson acquittal. Jelpi Picou, executive director of the the Capital Appeals Project of Louisiana which is representing Mr. Snyder, said that, “Both a majority of the Louisiana Supreme Court and the State have denied that these statements demonstrated racially discriminatory intent” noted Mr. Picou, “because the prosecutor did not state the self-evident: that Mr. Snyder and Mr. Simpson are black. Given that Mr. Snyder’s trial took place less than a year after O.J. Simpson’s acquittal, it is difficult to imagine that the members of Mr. Snyder’s jury would not have been aware of the racially divisive nature of that case.” The Louisiana Supreme Court upheld Snyder’s conviction and death sentence, holding that no impermissible use of race had been shown. The case is Snyder v. Louisiana, No. 06-10119, and it will likely be heard by Court in the fall. (Press Release, Capital Appeals Project, June 25, 2007). Read the Press Release.

DECISION: The Court ruled 7-2 on March 19, 2008 that the conviction and death sentence of Allen Snyder should be overturned because the trial judge allowed a potential juror to be rejected on what appeared to be racial grounds. The decision, written by Justice Samuel Alito, focused on the elimination of an African-American man from jury panel. The Court rejected the prosecution’s non-racial reasons for striking this juror: “The implausibility of this explanation is reinforced by the prosecutor’s acceptance of white jurors who disclosed conflicting obligations that appear to have been at least as serious as Mr. Brooks’.”

During the prosecution’s closing argument, he made reference to the similarity between the present case and the O.J. Simpson case that had been recently decided, indicating to the jurors that they should not let Snyder “get away” with this crime. The Supreme Court did not address that issue, but concluded, “For present purposes, it is enough to recognize that a peremptory strike shown to have been motivated in substantial part by discriminatory intent could not be sustained based on any lesser showing by the prosecution.”

The case is Snyder v. Louisiana, No. 06-10119. (Scotus.blog, March 19, 2008)

ARAVE V. HOFFMAN, No. 07-110

Per curiam decision dismissing the petition as moot: January 7, 2008

The petitioner, Max Hoffman, asked the Court to dismiss his claim that he had been given ineffective assistance of counsel during plea negotiations. Since the state of Idaho was in agreement with this request, the Supreme Court dismissed the case as moot and remanded the case to the lower courts so that Hoffman could pursue his re-sentencing.

On November 5, 2007, the Court had agreed to decide how appellate courts should evaluate claims of ineffective assistance of counsel in plea negotiations. The case stemmed from an Idaho murder committed by Max Hoffman and two other men in 1987. Five weeks before his trial, prosecutors offered Hoffman a plea deal, stating they would not seek the death penalty if Hoffman pleaded guilty to first-degree murder. His court-appointed lawyer advised him that Idaho’s death penalty law was likely to be struck down as unconstitutional because it was nearly identical to an Arizona law that had recently been overturned by the 9th Circuit. Hoffman, who doubted that he was guilty of first-degree murder given his role in the crime, followed his attorney’s advice and rejected the state’s plea deal. In 1989, he was convicted of first-degree murder and sentenced to death — a sentence that was affirmed when the Idaho Supreme Court upheld the state’s death penalty statute. The U.S. Supreme Court separately upheld Arizona’s death penalty law.

In 2006, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit overturned Hoffman’s death sentence because of the “deficient performance of his counsel.” The court found that Hoffman’s court-appointed attorney had never before handled a murder case and failed to conduct “reasonable research into the legal landscape” before advising his client to reject the guilty plea. Judge Harry Pregerson, writing for the panel, said that rejecting the plea bargain was a “risky proposition with a substantial downside.” He added that were it not for the “flawed advice” given to Hoffman by his defense attorney, “there is a more reasonable probability that he would have accepted the plea.”

The state appealed the 9th Circuit’s decision finding ineffectiveness of counsel, maintaining that only “gross error” by the attorney during plea negotiations should result in a reversal. The 9th Circuit held that the state must offer the defendant the same deal it had offered before or free him. (New York Times, November 6, 2007; SCOTUS Blog, November 5, 2007; Los Angeles Times, November 6, 2007). Read the summary of this case from SCOTUSblog.

ALLEN V. SIEBERT, No. 06-1680

Cert. Granted: November 5, 2007
Decided: November 5, 2007

In a per curiam decision, the Court ruled 7-2 that the running of the one-year filing deadline for pursuing a federal habeas corpus challenge to a state conviction is not interrupted while a defendant pursues an untimely challenge in state court, no matter how the state sets the time limit for such challenges. The Court said its ruling in 2005 in Pace v . DiGuglielmo meant that an improperly filed state challenge does not “toll” the habeas filing deadline: “When a postconviction petition is untimely under state law, that is the end of the matter for purposes” of the habeas filing deadline. Justices John Paul Stevens and Ruth Bader Ginsburg dissented. (Adapted from Scotusblog, Nov. 5, 2007).

Siebert’s execution date was recently stayed because of challenges to the state’s lethal injection process. Read the Court’s Opinion.