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  • Lisa Sendrow

Evolving Standards of Decency: Will Kavanaugh Transform the Death Penalty the way Kennedy did?

Updated: Oct 23, 2023

Justice Anthony Kennedy retired from the Supreme Court on July 31, 2018. He was often the swing vote of many of the most ideological decisions, including issues regarding criminal justice and the death penalty. If President Trump’s rhetoric provides any indication, then his nominee Brett Kavanaugh may reject any challenges to capital punishment. Kennedy was often the key vote in slowly limiting death penalty practices. But if Kavanaugh is appointed, will those practices resurface?

Justice Kennedy frequently relied on the support of logic, statistics, and science to write opinions. For instance, in Roper v. Simmons, Kennedy wrote that “evolving standards of decency” played a role in Eighth Amendment jurisprudence. He noted that the practice of executing juveniles was infrequent and prohibited in most states and made parallels to the Supreme Court’s decision in Atkins v. Virginia, an opinion he joined, which ended the death penalty for the intellectually disabled. In Roper, he cited to psychology texts and appended charts that included state information about the juvenile death penalty, compared with the minimum voting age, minimum age for jury service, and minimum age for marriage.

Justice Kennedy’s voice was essential to the “evolving standards of decency” doctrine, which recognizes the Eighth Amendment as fluid. In Hall v. Florida, he wrote that “[t]he Eighth Amendment’s protection of dignity reflects the Nation we have been, the Nation we are, and the Nation we aspire to be. This is to affirm that the Nation’s constant, unyielding purpose must be to transmit the Constitution so that its precepts and guarantees retain their meaning and force.” Hall v. Florida held that the cutoff IQ score to determine intellectual disability, creating a risk that someone with an intellectual disability would be executed, violated the Eighth Amendment. He would frequently cite to articles, polls, and scientific evidence to demonstrate how the morals of the United States have been changing, and why it is necessary to reconsider practices to fulfill those ethical obligations.

Although Justice Kennedy aligned with votes that allowed the death penalty to proceed regarding methods of execution, he often cast the deciding vote to limit circumstances in which states could impose capital punishment, short of finding the death penalty unconstitutional. Justice Kennedy recently emphasized that capital punishment is often applied in a paradoxical manner, which has “produced results not altogether satisfactory.” He did not believe that the Eighth Amendment should be interpreted to allow the extension of the death penalty excessively, such as when there is no moral culpability. He also did not believe in expanding the death penalty where its use would be “indefinite and obscure,” and instead maintained that it should be “reserved for the worst crimes and limited in its instances of application.” Kennedy wrote that “[i]n most cases justice is not better served by terminating the life of the perpetrator rather than confining him and preserving the possibility that he and the system will find ways to allow him to understand the enormity of his offense.”

Kavanaugh does not have much of a history with the death penalty, particularly because the D.C. Circuit does not see many capital and Eighth Amendment cases, but he has frequently held against defendants. He is especially willing when the other party is a government official. In criminal cases, he has only supported defendants 14 percent of the time, compared with one quarter of the time for the rest of his colleagues and one third of the time with the most defendant-friendly judge on the court. When he has not held against defendants, it has typically been because of mens rea issues.

But the Supreme Court will hear at least two novel capital cases in the next term: Madison v. Alabama, No. 17-7505 and Bucklew v. Precythe, No. 17-8151. In Madison, the petitioner is set to be executed for killing a police officer and wounding his ex-girlfriend. However, he has suffered from multiple strokes that caused serious brain damage, and as a result, has dementia, “is legally blind, can no longer walk independently, and has urinary incontinence.” Further, he no longer remembers committing the crime. This case forces the Court to consider whether the evolving standards of decency and the Eighth Amendment’s prohibition of cruel and unusual punishment bar the execution of a man who no longer remembers the crime he committed and who is no longer competent enough to understand the circumstances of his scheduled execution. In Bucklew, the petitioner suffers from an incurable medical condition that causes blood-filled tumors in his throat that would cause him to choke and drown in his own blood if lethally-injected. The Court will have to determine whether an inmate should be provided an alternative method of execution that does not rise to the level of “cruel and unusual punishment.” If Kavanaugh is confirmed, will he appropriately apply case precedent to favor the prisoners?

Madison would likely be controlled by the 5-4 opinion of Panetti v. Quarterman, which Kennedy authored, and holds that the Eighth Amendment protects prisoners who are incompetent from being executed. On the other hand, the slim majority opinion in Glossip would likely control Bucklew. In that case, joined by Justice Kennedy, the Court held that death row prisoners needed to establish that there was an alternative method of execution that would not be painful.

If (and when) Judge Kavanaugh is confirmed, will he become the Supreme Court’s voice for the evolving standards of decency? Will he reveal sympathy towards death row prisoners facing unjust executions? Kennedy will no longer be on the Court to determine whether new methods of execution are cruel and unusual. There is potential that Chief Justice John Roberts will begin to side more with death row prisoners; in recent years, he has demonstrated more of a willingness to dismiss death sentences in cases where Justice Kennedy had concerns. However, proponents of a fair and effective administration of justice in capital defense will likely be experiencing setbacks with Justice Kennedy gone. Judge Kavanaugh has not demonstrated any sympathy towards evolving standards of decency, mental illness, intellectual disability, or claims of innocence in the D.C. Circuit, so it is unlikely that he will stay an execution or limit capital punishment in the Supreme Court. However, he did once dissent that particularly in death penalty cases, claims of innocence based on newly discovered evidence needed to be “properly explored.” With regard to Madison and Bucklew, he would likely follow precedent, which would bode well for Mr. Madison, but not so much for Mr. Bucklew. But just like Justice Gorsuch, Judge Kavanaugh may have some surprises for us.


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