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Posted at 12:20 PM ET, 07/15/2011

The justices and Jaycee Dugard


A Stolen Life , Jaycee Lee Dugard’s harrowing memoir of sexual torture and confinement at the hands of Phillip Garrido, has hit the top of Amazon’s best-seller list. I read it, astonished at her courage and her eloquence — and disgusted at the crimes Garrido, on parole for a previous rape, committed against Dugard for years, starting when she was 11. 

I also wondered how history might have been different if Dugard had escaped from her 18-year hell before the Supreme Court’s 2008 decision in Kennedy v. Louisiana, instead of a year after it. This was the case in which the court voted 5-4 to ban the death penalty for raping a child. No future Phillip Garrido need ever fear execution, though many who read Dugard’s book will agree with me that he would richly deserve it. 

At the time, the majority opinion by Justice Anthony M. Kennedy struck me as a mixed salad of moralizing and debatable assertions. Post-Dugard, it’s even less persuasive. 

In previous cases, the Supreme Court banned certain applications of capital punishment partly because a large majority of states had abandoned them, suggesting a “national consensus.” For example, when the court struck down the death penalty for the rape of an adult in 1977 it cited the fact that only Georgia still allowed it. 

In Kennedy v. Louisiana, Justice Kennedy (no relation, obviously) claimed a “national consensus” against the death penalty for raping a child, because only six states allowed it. But they were all post-1995 statutes; under the court’s precedents, the one-way direction of the recent trend argued for their constitutionality.

Kennedy also noted that federal law did not punish the rape of a child with death — but it was pointed out after his decision that this was wrong. Congress had, in fact, allowed that penalty in the Uniform Code of Military Justice in 2006. 

Kennedy fretted about executing anyone on a child’s testimony: He didn’t want to put victims through a capital case’s “multiple proceedings”; he also alluded to “unreliable, induced, and even imagined child testimony.”

Yet these issues exist when children, often traumatized, testify about other crimes, including capital murders. The system relies on judges and lawyers to manage them sensitively, case-by case.  

Dugard, as it happens, might never have needed to take the stand: The irrefutable evidence of Garrido’s guilt included the two teenage girls he fathered by raping her and videotapes of the rapes that he made for his own entertainment. 

Kennedy’s bottom line was that the death penalty is simply too “harsh” for a non-lethal crime: “We cannot sanction this result when the harm to the victim, though grave, cannot be quantified in the same way as death of the victim.”

This sweeping ipse dixit was barely plausible in Kennedy v. Louisiana, which involved a single violent rape of an 8-year-old; it’s more dubious with respect to a case like Dugard’s.

As Justice Samuel A. Alito wrote in a dissenting opinion that now reads like prophecy, Kennedy’s ban applies “no matter how young the child, no matter how many times the child is raped, no matter how many children the perpetrator rapes, no matter how sadistic the crime, no matter how much physical or psychological trauma is inflicted, and no matter how heinous the perpetrator’s prior criminal record may be.”

Kennedy also wrestled with the fact that other non-lethal crimes, such as espionage, are punishable by death. He distinguished them as “offenses against the state” — as if that explained why passing secrets to Cuba is always more heinous than the rape of a child. Read Dugard’s book if you think there is no fate worse than death. 

To be sure, Phillip Garrido, now sentenced to 431 years, would never have faced capital punishment in California even prior to Kennedy v. Louisiana, because the state didn’t allow it except for murder. (His accomplice wife, Nancy Garrido, is also in prison).

And Justice Kennedy — joined by Justices John Paul Stevens, Stephen A. Breyer, David H. Souter and Ruth Bader Ginsburg — was not wrong to worry about allowing capital punishment for any rape, given this country’s sorry history of racially-biased sex-crime prosecutions. The court has rightly ruled that the death penalty should be limited to the “worst of the worst”; reasonable people can debate whether non-lethal crime belongs in that category.

But that’s the point: These are as much policy issues as constitutional ones, and the court was wrong to trump the people’s representatives, especially on such a flimsy factual foundation.

If anything, there’s a “national consensus” in favor of the death penalty for raping a child. A poll after the court’s ruling showed that only 38 percent of the public agreed with it, while 55 percent disagreed.

A major presidential candidate said 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."

Barack Obama was exactly right.

By  |  12:20 PM ET, 07/15/2011

 
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