J. Richard Broughton (Wayne State University Law School) has posted Kennedy, the Fall, and the Tail of Minos on SSRN. Here is the abstract:
n Dante's Inferno, the damned appeared before Minos, who judged the gravity of their sins and assigned their souls to their respective circles of Hell by wrapping his tail around his body. In this paper, I examine whether, in light of its decision in Kennedy v. Louisiana and its methodology for reviewing categorical exemptions from the death penalty, the Supreme Court has problematically assumed for itself the role of a kind of contemporary constitutional Minos, at least in the realm of capital punishment. First, I argue, Kennedy is a case about comparative resulting harms among violent crimes. The Kennedy dissent should have more robustly attacked the Court's categorical exemption methodology, which undervalues legitimate penological justifications for capital punishment and ultimately constitutionalizes the Court's subjective assessments of culpability and harm, allowing the Court to dictate offense seriousness, public morality, and political acceptability of the death penalty. Second, the Court's attempt to limit its holding is illusory because Kennedy's loose rhetoric and underdeveloped harm theory could jeopardize the constitutionality of any statute that permits the death penalty for a non-homicide offense, including crimes against the state, and even unintentional murders that may not satisfy the Court's own sensibilities about resulting harm. Finally, Kennedy's Minos-like approach to assessing the gravity of offenses and to imposing its own moral judgment demonstrates that there remains both relevance and legitimacy in the structural debate over the scope and exercise of judicial power, especially where that power undermines the community's reasoned efforts to cope with violent crime.
