Should child rapists face death penalty?

The high court will decide if execution for a Louisiana child rapist is constitutional.

By Warren Richey | Staff writer of The Christian Science Monitor

from the April 16, 2008 edition

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Washington - Thirty years ago the US Supreme Court issued a landmark decision, declaring that sentencing someone to death for the crime of rape was cruel and unusual punishment.

The decision referred to the rape of an adult woman, but it left an issue unresolved. What if the victim is a young girl? Can the government execute a child rapist?

Thirty years later, the Supreme Court is about to answer that question. The justices on Wednesday will hear the case on behalf of a Louisiana death-row inmate convicted of raping his 8-year-old stepdaughter in 1998.

The case is being closely watched because it may offer insight into the future direction of the high court's death-penalty jurisprudence. "The trend has been toward restriction [by the Supreme Court] of the number of people who are eligible for capital punishment," says John Blume, director of the Death Penalty Project at Cornell University Law School in Ithaca, N.Y.

At the same time, the number of death sentences imposed and the number of executions are both down. "There seems to be an increased public sentiment not necessarily to get rid of the death penalty, but to restrict its use," Professor Blume says.

A high court ruling upholding the Louisiana death sentence for child rape would buck that trend.

At issue in Patrick Kennedy v. Louisiana is the constitutionality of a Louisiana law authorizing capital punishment for the rape of a child under age 12. Lawyers for the state defend the statute, saying child rapists inflict lifelong injuries on the most vulnerable members of society.

"Rape of a child under 12 is a crime like no other," writes Juliet Clark, assistant district attorney in Gretna, La., in her brief urging the court to uphold the death sentence.

Lawyers for Mr. Kennedy say the Supreme Court's 1977 decision must be applied – regardless of the age of the rape victim. "Capital punishment is categorically impermissible for person-on-person violence that does not result in death," writes Jeffrey Fisher of Stanford Law School's Supreme Court Litigation Clinic in his brief to the court.

No one has been executed in the United States solely for the crime of rape in nearly 44 years.

The case is expected to divide the high court into familiar liberal-conservative factions with Justice Anthony Kennedy potentially wielding the decisive vote. In 2002, he voted with the majority to outlaw the death penalty for convicted killers who are mentally retarded, and he wrote the 2005 opinion declaring capital punishment for juveniles unconstitutional.

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