In Kennedy v. Louisiana, the Supreme Court held that the death penalty is unconstitutionally excessive for any crime against the person that does not result in a death. The crime there was the aggravated rape of a child under age 12. Justice Alito’s excellent dissenting opinion questioned the conclusion that every act that results in a killing is necessarily worse than every act that does not result in death. I have said repeatedly that Justice Alito has the better of the argument, on this ground and others. But if you want an example of a truly horrible crime that did not result in the death of the victims (I think Kennedy involved one, the brutal rape of an 8-year-old by her stepfather), I give you Jordie Callahan and Jessica Hunt of Ohio, as well as their accomplices. Please read the Sixth Circuit’s opinion in United States v. Callahan & Hunt to see that harm that people can do to others without killing them.
What punishment is truly proportionate for these acts, even assuming we do not authorize the death penalty for them? It is, by the way, notable that even if a death results from the kind of conduct at issue here, 18 U.S.C. section 1589 – the federal criminal prohibition on forced labor – does not authorize the death penalty. Not sure why that is. But in a time when our discussion of criminal justice reform is focusing on non-violent offenses and “mass incarceration,” it is also important not to lose sight of the Callahans and Hunts of the world.
Hat tip to IJ’s Short Circuit for alerting me to the Sixth Circuit’s decision.