CRIMINAL JUSTICE DISCUSSION

Supreme Court Rejects Death Penalty for Child Rape

WASHINGTON - The death penalty is unconstitutional as a punishment for the rape of a child, a sharply divided Supreme Court ruled Wednesday.

The 5-to-4 decision overturned death penalty laws in Louisiana and five other states. The only two men in the country who have been sentenced to death for the crime of child rape, both in Louisiana, will receive new sentences of life without parole.

The court went beyond the question in the case to rule out the death penalty for any individual crime - as opposed to "offenses against the state," such as treason or espionage - "where the victim's life was not taken."

Justice Anthony M. Kennedy, writing for the majority, said there was "a distinction between intentional first-degree murder on the one hand and non-homicide crimes against individual persons," even such "devastating" crimes as the rape of a child, on the other.

The decision was the third in the last six years to place a categorical limitation on capital punishment. In 2002, the court barred the execution of mentally retarded defendants. In 2005, it ruled that the Constitution bars the death penalty for crimes committed before the age of 18.

Nonetheless, despite this trend toward narrowing the application of the death penalty, there was no suggestion from the majority that the court was moving toward the abolition of capital punishment, which Justice John Paul Stevens called for in an opinion two months ago that no other justice joined.

Justice Kennedy said Wednesday that while the court's death penalty jurisprudence "remains sound," it should not be expanded to cover a crime for which no one has been executed in the United States for the past 44 years.

The case, Kennedy v. Louisiana, No. 07-343, was an appeal by one of the two Louisiana inmates, Patrick Kennedy. He was convicted and sentenced to death in 2003 for raping his 8-year-old stepdaughter, whose injuries were severe enough to require emergency surgery. The Louisiana Supreme Court upheld Mr. Kennedy's conviction and rejected his challenge to the constitutionality of his sentence.

The United States Supreme Court prohibited capital punishment for rape in a 1977 case, Coker v. Georgia, in which the victim, while only 16 years old, was married and had the legal status of an adult. It was not clear at the time whether that decision was limited to the rape of an adult woman, or whether it barred the death penalty for any rape. The court on Wednesday treated the issue of capital punishment for child rape as a fresh question, not governed by any existing precedent. As a matter of constitutional analysis, the question in the case was whether the death penalty was so disproportionate to the offense as to amount to cruel and unusual punishment, in violation of the Eighth Amendment. The court's modern precedents interpret the Eighth Amendment according to "the evolving standards of decency that mark the progress of a maturing society."

Using that benchmark, Justice Kennedy said the majority had reached its conclusion based on "our own independent judgment" about the implications of extending the death penalty to child rape as well as on the fact that the great majority of states have declined to do so.

The Louisiana law extending the death penalty to the rape of children under the age of 12 dates to 1995. The states that followed were Georgia, Montana, Oklahoma, South Carolina, and Texas. Unlike Louisiana, those states all require that a defendant have a previous rape conviction or some other aggravating factor in order to be subject to the death penalty, and no one has yet been sentenced to death under any of the laws.

Justice Kennedy said there was thus a national consensus against applying capital punishment for the crime.

In a dissenting opinion, Justice Samuel A. Alito Jr. sharply disputed this conclusion. He said that because many judges and lawyers had interpreted the 1977 Coker decision as barring capital punishment for any rape, state legislatures "have operated under the ominous shadow" of that decision "and thus have not been free to express their own understanding of our society's standards of decency."

The fact that six states in modern times have nonetheless enacted such laws, Justice Alito said, "might represent the beginning of a new evolutionary line" that "would not be out of step with changes in our society's thinking since Coker was decided." He said there were abundant indications that society had become more aware of and concerned about sex crimes against children.

Those who voted with Justice Kennedy in the majority were Justice Stevens and Justices David H. Souter, Ruth Bader Ginsburg, and Stephen G. Breyer. Chief Justice John G. Roberts Jr. joined the dissent, along with Justices Antonin Scalia and Clarence Thomas.

Addressing the separate question of the court's "own judgment," Justice Kennedy suggested that the flow of death penalty cases for child rape could overwhelm the country's criminal justice system. He noted that in 2005 there were 5,702 reported rapes of children under the age of 12.

"In this context, which involves a crime that in many cases will overwhelm a decent person's judgment," Justice Kennedy said, "we have no confidence that the imposition of the death penalty would not be so arbitrary as to be freakish."

He continued: "We cannot sanction this result when the harm to the victim, though grave, cannot be quantified in the same way as death of the victim."

Justice Kennedy also said capital punishment for child rape presented specific problems, including the "special risks of unreliable testimony" by children and the fact that the crime often occurs within families. Families might be inclined to "shield the perpetrator from discovery" when the penalty is death, he said, leading to an increase in the problem of under-reporting of these crimes.

Justice Alito, in his dissenting opinion, said these concerns were "policy arguments" that were "simply not pertinent to the question whether the death penalty is ‘cruel and unusual' punishment." He said the Eighth Amendment "does not authorize this court to strike down federal or state criminal laws on the ground that they are not in the best interests of crime victims or the broader society."

Both presidential candidates criticized the death penalty decision. Senator John McCain, the presumptive Republican nominee, said: "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" He called the decision "an assault on law enforcement's efforts to punish these heinous felons for the most despicable crime."

Senator Barack Obama, the presumptive Democratic nominee, said, "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 under narrow, limited, well-defined circumstances, that the death penalty is at least potentially applicable, that does not violate our Constitution." He added that the Supreme Court should have set conditions for imposing the death penalty for the crime, "but it basically had a blanket prohibition, and I disagree with the decision."

In a second decision on Wednesday, the court ruled that the introduction at trial of statements that a murder victim had made to the police violated the constitutional rights of the man who was on trial for killing her.

Before her death, the victim had summoned the police to complain that Dwayne Giles, later charged with her murder, had threatened to kill her. Writing for the court, Justice Scalia said that use of the statement violated Mr. Giles's Sixth Amendment right to cross-examine the witnesses against him, unless the prosecution could first prove that he deliberately killed a witness was to make her unavailable to testify. Mr. Giles claimed self-defense in the killing.

The vote in the case, Giles v. California, No. 07-6053, was 6 to 3. Justices Breyer, Stevens, and Kennedy dissented. The decision overturned a ruling by the California Supreme Court, which had affirmed Mr. Giles's murder conviction, but left the state free to try and prove the necessary intent.

Linda Greenhouse, Supreme Court Rejects Death Penalty for Child Rape, nytimes, (last visited March 9, 2010).

Giles v. California, 554 US 353 (2008)

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