High Court Rejects Death For Child Rape

In their death-penalty decision, justices distinguished between first-degree murder and non-homicide crimes.
In their death-penalty decision, justices distinguished between first-degree murder and non-homicide crimes. (By Alex Wong -- Getty Images)
By Robert Barnes
Washington Post Staff Writer
Thursday, June 26, 2008

The Supreme Court ruled yesterday 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 to 4 decision, which prompted immediate controversy, 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 M. Kennedy wrote in what will be a term-defining decision for the court.

While the latter 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 H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer.

The decision prompted an unyielding rebuttal from the conservative wing of the court, and condemnation from both presidential candidates, even though 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 row nationwide, 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 younger than 12.

Justice Samuel A. Alito Jr. questioned the majority's logic that every murderer sentenced to death is more "morally depraved" than any child-rapist.

"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.

Both the Democratic and Republican presidential candidates also denounced the court's action.

"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," said Sen. John McCain, the presumptive Republican nominee.

Sen. Barack Obama said he opposes the court's "blanket prohibition." "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," said the presumptive Democratic nominee.

The decision overturned the death penalty for Patrick Kennedy, 43, who was convicted of raping his 8-year-old stepdaughter in Louisiana in 1998 -- an assault so brutal that the girl required surgery.

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