Punishing an Enormity

Saturday, June 28, 2008

IT IS NOT EVERY day that we greet with conflicting feelings the release of a Supreme Court decision with which we agree. But such is the case with Kennedy v. Louisiana. Even while concurring with the majority's decision, handed down Wednesday, to strike down the death penalty for child rapists, we join Justice Samuel A. Alito Jr.'s declaration in dissent that "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."

As a matter of policy and principle, we have long opposed the death penalty for all manner of crime, including murder; capital punishment for child rapists would only have expanded a punishment that we believe should be outlawed. There are also practical reasons to oppose the extension of the death penalty to child rape,

including the possibility that it could provide perverse incentive for perpetrators to kill their victims.

As a matter of law, though, the question of whether to permit capital punishment for the rape of a child is a close call, as evidenced by the justices' 5 to 4 split. Justice Anthony M. Kennedy, writing for the majority, concluded that the law bars imposition of the death penalty if "the crime did not result, and was not intended to result, in the victim's death." He found that "evolving standards of decency" -- created as a legal yardstick in earlier death penalty cases to measure whether a punishment was "cruel and unusual" -- argued against endorsing the death penalty for such a crime; he also noted a "national consensus" against the practice. As proof, he offered that only six states have such penalties on the books. Justice Alito, however, noted in his dissent that five of those states enacted such laws over the past few years, suggesting that the pendulum of public opinion is swinging the other way. Justice Alito also argued that an earlier Supreme Court case outlawing the death penalty for the rape of a woman discouraged states from enacting capital punishment laws for rape of a child and helps to explain the dearth of such legislation.

Now that the death penalty is no longer an option in child rape cases, states must ensure that those convicted of such heinous crimes are punished to the maximum extent of the law. For some, including those who commit particularly violent rapes or are convicted of raping multiple children, life without the possibility of parole would be appropriate, even if in some ways not harsh enough.

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