Court limits death penalty, again

Decision to bar capital punishment for people who rape a child is latest in string of decisions that restrict death sentences

The Washington PostJune 26, 2008 

  • The Democratic and Republican presidential candidates both denounced the court's action.

    SEN. JOHN McCAIN: "That there is a judge anywhere in America who does not believe that the rape of a child represents the most heinous of crimes, which is deserving of the most serious of punishments, is profoundly disturbing."

    SEN. BARACK OBAMA: "I think that the rape of a small child, 6 or 8 years old, is a heinous crime, and if a state makes a decision that under narrow, limited, well-defined circumstances, the death penalty is at least potentially applicable, that does not violate our Constitution."


  • The case that the Supreme Court decided Wednesday was an appeal by Louisiana inmate Patrick Kennedy. He was convicted and sentenced to death in 2003 for raping his 8-year-old stepdaughter, whose injuries were severe enough to require emergency surgery. The Louisiana Supreme Court upheld Kennedy's conviction and rejected his challenge to the constitutionality of his sentence.


— The Supreme Court on Wednesday ruled that it is unconstitutional to execute someone who rapes a child, issuing a broad decision that reserves the death penalty for murderers and those who commit crimes against the state.

The 5-4 decision continued the move by a slim majority of the court to narrow the circumstances under which capital punishment is allowed, even when society views the crime with "revulsion."

"There is a distinction between intentional first-degree murder on the one hand and nonhomicide crimes against individual persons, even including child rape, on the other," Justice Anthony Kennedy wrote in what will be a term-defining decision for the court.

Though such crimes may be "devastating in their harm," Kennedy said, "they cannot be compared to murder in their severity and irrevocability." He was joined by the court's more liberal members: John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer.

Under North Carolina law, only first-degree murder is punishable by death.

No one has been executed for rape in the United States since 1964. Though capital punishment can be imposed for crimes against the state such as treason, espionage and terrorism, of the 3,300 inmates on death rows across the country, only two face execution for a crime other than murder. Both were convicted under the Louisiana law in question, which authorized the death penalty for anyone who rapes a child under the age of 12.

The decision prompted outrage from the conservative wing of the court.

Justice Samuel Alito questioned the majority's logic that every murderer sentenced to death is more "morally depraved" than someone who rapes a child.

"I have little doubt that, in the eyes of ordinary Americans, the very worst child-rapists -- predators who seek out and inflict serious physical and emotional injury on defenseless young children -- are the epitome of moral depravity," he wrote.

Alito was joined by Chief Justice John G. Roberts Jr. and justices Antonin Scalia and Clarence Thomas.

'Hurt and horror'

The decision overturned the death penalty for Patrick Kennedy, 43, who was convicted of raping his 8-year-old stepdaughter in Louisiana in 1998.

It was a crime, Justice Kennedy wrote, "that cannot be recounted in these pages in a way sufficient to capture in full the hurt and horror inflicted on his victim." But that does not mean it should be answered by society with death, he wrote.

"When the law punishes by death, it risks its own sudden descent into brutality, transgressing the constitutional commitment to decency and restraint," Kennedy said.

Ever since the Supreme Court reinstated the death penalty more than 30 years ago, justices have been finding ways to limit it.

The court has ruled that even among murderers, only those who commit a "narrow category of the most serious crimes" are eligible for death. In recent years, it has said it was following the evolving standards of society in ruling that the mentally retarded and those who commit murder as juveniles may not be executed.

No such national consensus exists for putting child-rapists to death, Kennedy said.

Only six of the 36 jurisdictions that authorize the death penalty -- states and the federal government -- extend it to those convicted of raping a child, Kennedy wrote.

Alito said the tally was disingenuous in light of a 1977 decision by the court that many had interpreted as saying capital punishment could not be applied to a rapist.

Even though the victim in Coker v. Georgia was a 16-year-old "adult woman," Alito said the decision "posed a very high hurdle" for states that wanted to impose capital punishment for those that raped children.

Louisiana was the first, in 1995, and has been followed by Montana, South Carolina, Oklahoma and most recently Texas. They might have been the start of a "strong new evolutionary line" forming a national consensus in favor of executing child-rapists, Alito said, but "we will never know, because the court today snuffs out the line in its incipient stage."

Dispute on principles

But Kennedy said the decision must also be informed by "our own understanding" of the Constitution and by evolving standards. Kennedy said there were more than 5,700 incidents of vaginal, anal or oral rape of a child under 12 reported in 2005, more than twice the number of intentional murders of victims of all ages.

The courts are already overwhelmed dealing with death penalty appeals, and Kennedy said it would be nearly impossible to develop a legal foundation to assure that only the worst of child-rapists are executed.

He also said there are "serious systemic concerns" in prosecuting the crime of rape of a child, including that children are highly susceptible to coaching and unreliable in testimony. Child advocates think the potential of the death penalty would lead to underreporting of the crime, especially in the likely event the perpetrator is a family member, and could also remove any incentive for the rapist not to kill the child.

Alito said none of that had anything to do with whether the death penalty for a child-rapist violates the Eighth Amendment's protection against cruel and unusual punishment. "The court's policy arguments concern matters that legislators should -- and presumably do -- take into account," Alito said, "but these arguments are irrelevant to the question that is before us in this case."

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