Supreme Court sharply limits use of death penalty

In a 5-to-4 ruling, the justices decide child rape isn't a capital offense.

By , Staff writer of The Christian Science Monitor

Sentencing a child rapist to death is cruel and unusual punishment that violates the Eighth Amendment.

In a major ruling sharply restricting crimes carrying potential death sentences, the US Supreme Court on Wednesday invalidated part of a Louisiana statute that made aggravated sexual assault against a child under 12 a capital offense.

The majority justices ruled 5 to 4 that capital punishment is constitutionally impermissible for person-on-person violent crime that does not result in the death of the victim. The case is Kennedy v. Louisiana.

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"The death penalty is not a proportional punishment for the rape of a child," Justice Anthony Kennedy wrote in the majority opinion.

The Eighth Amendment must reflect the "evolving standards of decency that mark the progress of a maturing society," Justice Kennedy said. He added that a national consensus had emerged against capital punishment for child rape.

The decision won immediate praise from capital-punishment opponents. "The court's decision wisely rejects the dramatic expansion of capital punishment that would undermine the long-standing principle of civilized societies that reserves the ultimate penalty for those who commit the most heinous murders," said Virginia Sloan, president of the Constitution Project, a Washington-based legal-research group.

She said expansion of the death penalty beyond murder "would have exacerbated the already intolerable level of error at the expense of both crime victims and those wrongly accused of these terrible acts."

Six states currently authorize a death sentence for child rape. In addition to Louisiana, they are Georgia, Montana, Oklahoma, South Carolina, and Texas.

The decision clarifies a question left open in a 1977 case, Coker v. Georgia, in which the high court invalidated a death sentence for a man who had raped a 16-year-old married woman. The justices said capital punishment was disproportionate to the crime.

Many legal analysts said the court had drawn a bright line forbidding the death penalty in all cases that did not result in the death of the victim.

But other analysts suggested that the 1977 case held only that the circumstances of most rapes of adult women do not rise to a level justifying capital punishment. In contrast, the aggravated rape of a young child can be as bad as murder, they said.

On Wednesday, the majority justices disagreed. "The incongruity between the crime of child rape and the harshness of the death penalty poses risks of overpunishment and counsels against a constitutional ruling that the death penalty can be expanded to include this offense," Kennedy wrote.

In a dissent, Justice Samuel Alito said the majority justices were usurping the work of state lawmakers. "The harm that is caused to the victims and to society at large by the worst child rapists is grave. It is the judgment of the Louisiana lawmakers and those in an increasing number of other states that these harms justify the death penalty," he wrote.

"The court provides no cogent explanation why this legislative judgment should be overridden," Justice Alito wrote. "Conclusory references to 'decency,' 'moderation,' 'restraint,' 'full progress,' and 'moral judgment' are not enough."

The decision stems from the case of Patrick Kennedy, who was convicted and sentenced to die for raping his 8-year-old stepdaughter in March 1998.

Mr. Kennedy told police that she had been selling Girl Scout cookies in the garage when two boys from the neighborhood dragged her to a side yard and raped her.

Her injuries were extensive and severe. They required surgery to stop the bleeding.

By the time Kennedy stood trial, the stepdaughter was 14. She testified that Kennedy had raped her and then told her to tell police it was two teenage boys.

Kennedy was convicted. During the sentencing phase of the trial, prosecutors presented the testimony of a second girl who said Kennedy had engaged in sexual intercourse with her several years earlier when she was 8 or 9. She did not tell anyone about it at the time and no charges were ever filed.

Kennedy's conviction and death sentence were appealed. Both were upheld by the Louisiana Supreme Court.

In reversing Kennedy's death sentence, Justice Kennedy said: "The rule of evolving standards of decency with specific marks on the way to full progress and mature judgment means that resort to the penalty must be reserved for the worst of crimes."

He added, "In 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."

To avoid the arbitrary application of the death penalty, Kennedy said it is necessary "at this stage of evolving standards" to limit capital punishment to only those crimes that take the life of the victim.

In his dissent, Alito questioned whether there aren't crimes even worse than murder. "Is it really true that every person who is convicted of capital murder and sentenced to death is more morally depraved than every child rapist?" he asked.

Alito said it was a question for state lawmakers, not Supreme Court justices. "The Court is willing to block the potential emergence of a national consensus in favor of permitting the death penalty for child rape because, in the end, what matters is the Court's 'own judgment' regarding the 'acceptability of the death penalty,' " he wrote.

Joining Kennedy's majority opinion were Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg, and Stephen Breyer. Chief Justice John Roberts and Justices Antonin Scalia and Clarence Thomas joined Alito's dissent.

The ruling won praise from Ben Cohen of the Capital Appeals Project in Louisiana, who has worked as Kennedy's lawyer for four years. "The Court makes clear that Louisiana's experiment with the death penalty for rape ran afoul of the United States Constitution," he said.

He noted that in addition to Kennedy, a second man, Richard Davis, was also on death row in Louisiana for child rape. He said both men would automatically be resentenced to life without the possibility of parole.

Mr. Cohen added that his client continues to assert his innocence and that he intends to mount future appeals.

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