Death Penalty for Child Rape Barred by Top U.S. Court (Update4)
By Greg Stohr
June 25 (Bloomberg) -- A divided U.S. Supreme Court barred the death penalty for the crime of child rape, saying a Louisiana man's execution would violate the constitutional ban on ``cruel and unusual punishment.''
The justices, voting 5-4, spared Patrick Kennedy from becoming the first person since 1964 to be executed in the U.S. for a crime other than murder. Kennedy was convicted of raping his 8-year-old stepdaughter.
The death penalty is not a proportional punishment for the rape of a child,'' Justice Anthony Kennedy wrote for the court.
The ruling extends a line of Supreme Court cases that have restricted the circumstances in which the death penalty can be applied. It also underscores Kennedy's significance as the court's deciding vote on many social issues.
The court divided along ideological lines. Justices Stephen Breyer, John Paul Stevens, David Souter and Ruth Bader Ginsburg joined the majority. Chief Justice John Roberts and Justices Samuel Alito, Antonin Scalia and Clarence Thomas dissented.
The ruling drew criticism from both major-party presidential candidates. Illinois Senator Barack Obama, the presumptive Democratic nominee, faulted the court for issuing a ``blanket prohibition'' on the death penalty for child rape.
``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,'' Obama said at a press conference in Chicago.
McCain Criticism
Arizona Senator John McCain, the presumed Republican presidential nominee, in a statement condemned the majority for ``an assault on law enforcement's efforts to punish these heinous felons for the most despicable crime.''
Earlier this month, McCain said a 5-4 decision giving suspected terrorists held at Guantanamo Bay, Cuba, access to federal courts is ``one of the worst decisions in the history of this country.''
Louisiana was one of five states that explicitly permit execution of people convicted of raping a child. Patrick Kennedy, 44, and another Louisiana man were the only people in the nation on death row for a non-homicide crime.
The last U.S. execution for rape was in 1964, when Missouri put Ronald Wolfe to death. The last for any non-homicide crime took place later that same year, when Alabama executed convicted robber James Coburn.
The Supreme Court in 1977 said the Constitution barred execution for the rape of a 16-year-old. That ruling didn't address attacks on younger children.
`National Consensus'
The Supreme Court barred executions of retarded people in 2002, then took the same step in 2005 for killers who were under age 18 at the time of the crime. In each of those cases, the majority said a ``national consensus'' had emerged against those executions, noting that a number of states had barred them in recent years.
With child rape, the trend had been in the opposite direction. Three states -- Oklahoma, South Carolina and Texas -- have adopted capital punishment for child rape in the last two years, and Montana did so in 1997.
Justice Kennedy said those states weren't enough to constitute a trend favoring the death penalty for child rape. He said the evidence ``shows divided opinion but, on balance, an opinion against it.''
`Grave' Harms
In dissent, Alito said child rape imposed ``grave'' harms on children and society at large.
``It is the judgment of the Louisiana lawmakers and those in an increasing number of other states that these harms justify the death penalty,'' Alito wrote. ``The court provides no cogent explanation why this legislative judgment should be overridden.''
Louisiana Governor Bobby Jindal, a Republican, called the ruling ``an affront to the people of Louisiana and the jury's unanimous decision in this case.''
In upholding the death sentence, the Louisiana Supreme Court pointed to state and federal laws that permit the death penalty for such crimes as treason, espionage, air piracy and drug trafficking.
Justice Kennedy said the high court wasn't deciding whether the death penalty was constitutional for those crimes, restricting the ruling to cases of ``crimes against individuals.'' In that type of case, he said, the death penalty is appropriate only when the victim was killed.
Wrongful Conviction Risk
The majority opinion said execution is especially problematic in the child rape context because of the high risk of wrongful conviction. Patrick Kennedy's stepdaughter originally said she had been raped by two teenaged boys from the neighborhood. Prosecutors eventually concluded that Kennedy had been the perpetrator and had told her to lie.
Justice Kennedy also questioned whether the death penalty would be in the best interests of victims, noting that the victim in the Louisiana case had to testify about the attack twice. He said capital punishment ``forces a moral choice on the child, who is not of mature age to make that choice.''
Kennedy also said the possibility of execution ``may remove a strong incentive for the rapist not to kill the victim.''
The case is Kennedy v. Louisiana, 07-343.
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