High Court Rejects Death For Child Rape
Penalty Reserved for Murder And Crimes Against State

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.

It was a crime, Justice Kennedy wrote, "that cannot be recounted in these pages in a way sufficient to capture in full the hurt and horror inflicted on his victim." But that does not mean it should be answered by society with execution, he wrote.

"When the law punishes by death, it risks its own sudden descent into brutality, transgressing the constitutional commitment to decency and restraint," he said.

Ever since the Supreme Court reinstated the death penalty more than 30 years ago, justices have been finding ways to limit it.

The court has ruled that even among murderers, only those who commit a "narrow category of the most serious crimes" are eligible for death in states that allow it. In recent years, the court has said it was following the evolving standards of society in ruling that the mentally retarded and those who commit murder as juveniles cannot be executed. No such national consensus exists for putting child-rapists to death, Kennedy said. Six of the 36 jurisdictions that authorize the death penalty -- states and the federal government -- extend it to those convicted of raping a child, he wrote.

Alito said the tally is disingenuous in light of a 1977 decision by the court that many had interpreted as saying that capital punishment could not be applied to a rapist.

Even though Coker v. Georgia concerned a 16-year-old "adult woman," Alito said the decision "posed a very high hurdle" for states that wanted to impose capital punishment for those who rape children.

Louisiana was the first, in 1995, and has been followed by Montana, South Carolina, Oklahoma and most recently Texas. (Florida and Georgia have older laws that have been called into question by state courts.) They might have been the start of a "strong new evolutionary line" forming a national consensus for executing child-rapists, Alito said, but "we will never know, because the court today snuffs out the line in its incipient stage."

But Kennedy said the decision must also be informed by "our own understanding" of the Constitution and the evolving standards in which it must be viewed.

Kennedy said that more than 5,700 incidents of vaginal, anal or oral rape of a child younger than 12 reported were reported in 2005, more than twice the number of intentional murders of victims of all ages.

The courts already are overwhelmed with death penalty appeals from the few murderers who receive it, and Kennedy said it would be nearly impossible to develop a legal foundation that would ensure that only the worst child-rapists are executed.

He also said there are "serious systemic concerns" in prosecuting the crime of child rape, including that children are highly susceptible to coaching and are unreliable in testimony. Child advocates oppose the death penalty in such cases, telling the court that it would lead to underreporting of the crime, especially when the perpetrator is a family member, and could also remove any incentive for the rapist not to kill the child.

Alito said that had nothing to do with whether the death penalty for a child-rapist violates the Eighth Amendment's protection against cruel and unusual punishment.

Stanford law professor Jeffrey L. Fisher, who argued the case on Patrick Kennedy's behalf, had told the court that 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.

The decision was the court's second major ruling on the death penalty this term. Earlier, it voted 7 to 2 that lethal injections do not violate the Constitution.

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