By Robert Barnes
Washington Post Staff Writer
Monday, April 14, 2008
Ever since the Supreme Court reinstated the death penalty more than 30 years ago, justices have been finding ways to limit it.
In the intervening years, they have employed their interpretations of society's "evolving standards of decency" to remove juvenile and mentally retarded killers from death row.
Before that, they excluded kidnappers who did not kill and even some accomplices to murder. In 1977 the court also concluded that a state could not execute a man who raped an adult woman.
But on Wednesday the court will consider whether a person who rapes a child is different. Louisiana prosecutors will argue that the same societal mores that have persuaded justices to spare certain categories of criminals lead in the opposite direction when it comes to child rapists, demanding an expansion of capital punishment, not a retrenchment.
Proponents say society demands retribution for those who harm its most vulnerable members. But some child advocacy experts say the unintended consequences of the death penalty might be a decline in the reporting of sexual assaults by family members, or even an incentive for the rapist to kill the victim.
The argument comes as the court has imposed a de facto moratorium on capital punishment while justices decide in a separate case whether the current methods of lethal injection are constitutional.
Even as the number of death sentences imposed in the United States has fallen -- there were the fewest last year since capital punishment was reinstated in 1976 -- Louisiana and a handful of other states have changed their laws to allow executions for those who rape children. They are supported by additional states that say they might want to do so in the future.
"The 'evolving standards of decency' framework is not a one-way street that may lead only towards the elimination of the death penalty," the state of Texas argues in a brief joined by eight other states. "Each state's legislature should be allowed to . . . reflect its citizens' current moral judgment regarding the just deserts for certain capital crimes."
Of the 3,300 inmates on death row across the country, only two are there for a crime other than murder. Both were convicted under Louisiana's child rape statute, passed in 1995 and still the broadest in the land.
Those facts alone are a powerful argument that executing someone for rape would violate the Eighth Amendment prohibition against "cruel and unusual punishment," argue lawyers for Louisiana death row inmate Patrick Kennedy. The 43-year-old Kennedy was convicted of raping his 8-year-old stepdaughter in 1998 in an assault so brutal that the girl required surgery.
But Jeffrey L. Fisher, a Stanford University law professor who will argue Kennedy's case, said no matter how heinous the crime, the court decided in 1977's Coker v. Georgia-- its last previous ruling on the limits of capital punishment -- that rape is not subject to the ultimate penalty.
Justice Byron R. White wrote for the court: "We have the abiding conviction that the death penalty, which is unique in its severity and irrevocability, is an excessive penalty for the rapist who, as such, does not take human life."
That might have settled it, except the court noted in that decision, and in subsequent ones, that although the victim was 16, she was an "adult woman."
To Louisiana legislators, that meant there was an open question about whether capital punishment would be allowed for those who rape children. The state's Supreme Court held that children require special protection from society and that the "the degradation and devastation of child rape, and the permeation of harm resulting to victims of rape in this age category" justify the death penalty.
And it pointedly noted that "this current court, and its new members" have not considered the issue.
Louisiana has been joined in expanding the death penalty by Montana, South Carolina, Oklahoma and most recently Texas. (Florida and Georgia have older laws that have been called into question by state courts.)
Missouri Gov. Matt Blunt (R) has asked his state's legislature to impose the death penalty on child rapists after the high-profile case of a man who kidnapped a boy and held him captive for four years. Michael J. Devlin received 74 life sentences, but Blunt questioned whether that was "sufficient" for his crimes.
"This court should not foreclose a national debate on appropriate punishment for child rape," Missouri said in an amicus brief.
Louisiana argues that such initiatives are reflective of the same sort of societal trends -- albeit in the opposite direction -- that the court recognized in 2002, when it declared the death penalty unconstitutional for the mentally retarded, and in 2005, when it did the same for juveniles. Both reversed earlier decisions by the court.
Fisher and the Capital Appeals Project in New Orleans, which represented Kennedy in his appeals, countered that more states have rejected the death penalty for child rapists than have added it, and that New Jersey repealed its death penalty law entirely. "Viewed against the backdrop of 44 years without a single execution for rape of any kind, the enactments of only four states over 13 years . . . hardly signify a shift in societal attitudes," their brief argues.
Expanding the death penalty to include non-homicidal rape would separate the United States from other Western nations and align it with "only a sliver" of the world, including China, Saudi Arabia and Egypt, Fisher argues.
Even if imposing the death penalty for child rapists were ruled constitutional, he said, Louisiana's law is so broad that it fails the Supreme Court's test of narrowing classifications of offenders to the worst of the worst. For instance, while other states require previous convictions before a convict is eligible for the death penalty, Louisiana does not. Anyone convicted of raping a child younger than 13 is eligible for the death penalty, even though the typical murderer would not be.
The NAACP Legal Defense Fund and the American Civil Liberties Union reminded the court of the "scourge of racial bias" that accompanied the execution of rapists during the middle part of the 20th century; nearly 90 percent of those executed were black.
Beyond legal issues, the law is bad policy, an unlikely coalition of social workers and groups that work to prevent sexual assaults told the court.
Her opposition "might seem counterintuitive," Judy Benitez, executive director of the Louisiana Foundation Against Sexual Assault, said in an interview. "But our great fear is that it will increase underreporting" of the crime.
She said the "vast majority" of sexual assaults against children are committed by a family member or friend, and that other family members would be unwilling to turn over the rapist if the death penalty might be carried out.
Additionally, the imposition of the death penalty means that abusers face no greater penalty for raping and killing their victims than for solely raping them, she said.
Benitez acknowledges those are arguments that would seem better directed at legislators than the courts. But she said lawmakers are often swayed by the emotions that accompany terrible crimes.
"It's a complex area that I think needs to be looked at in a more in-depth manner than policymakers are often willing to do," she said.