Impeachment Calls and Death Threats: Assessing Criticisms of the Death Penalty Jurisprudence of Justices Kennedy and O’Connor

IMPEACHMENT CALLS AND DEAIB THREATS: ASSESSING CRITICISMS OF THE DEAm PENALTY JURISPRUDENCE OF JUSTICES KENNEDY AND O’CONNOR

SUSAN RAEKER-JORDANt

Table of Contents

INTRODUCTION 1128

THE SUPREME COURT’S EIGHTH AMENDMENT CRUEL AND

UNUSUAL PUNISHMENTS CONSTRUCT 1132

Ill. THE SWING OPINIONS OF JUSTICE O’CONNOR 1134

N. JUSTICE KENNEDY AND THE EIGHTH AMENDMENT 1147

JUSTICE O’CONNOR AND JUSTICE KENNEDY MEET IN THE

MAJORITY IN ATKINS V. VIRGINIA 1156

The Evolving Standards of Decency 1157

The Legislative Evidence and Evidence of Sentencing

and Execution Frequency 1157

Evidence of International Opinion and Practices 1160

The Court’s “Own Judgment” on Proportionality 1163

JUSTICE O’CONNOR AND JUSTICE KENNEDY PART WAYS IN

ROPER V. SIMMONS 1167

The Evolving Standards of Decency 1169

The Legislative Evidence and Evidence of Sentencing

and Execution Frequency 1169

Justice Kennedy 1169

Justice O’Connor 1172

Evidence of International Opinion and Practices 1174

Justice Kennedy 1174

Justice O’Connor 1177

The Court’s “Own Judgment” on Proportionality 1179

Justice Kennedy 1179

Justice O’Connor 1180

CONCLUSION 1183

1 Professor of Law, Widener University School of Law. B.A., 1984, University of Maine at Orono, High Distinction; J.D., 1988, University of South Carolina School of Law, Order of the Coif.J.D. The author would like to thank Evan Gumz for his competent and thorough research assistance, Paula Heider for her patient and perfect clerical assistance, and Widener