Today the United States Supreme Court issued the long awaited decision in the Kennedy v. Louisiana death penalty case discussed earlier this year. The Court held that the Eighth Amendment bars Louisiana from imposing the death penalty for the rape of a child where the crime did not result, and was not intended to result, in the victim's death.
In a 5-4 decision written by Justice Kennedy, the Court found that there is a "national consensus against capital punishment for the crime of child rape" and that "the small number of States that have enacted the death penalty for child rape is relevant to determining whether there is a consensus against capital punishment for the rape of a child."
In a 5-4 decision written by Justice Kennedy, the Court found that there is a "national consensus against capital punishment for the crime of child rape" and that "the small number of States that have enacted the death penalty for child rape is relevant to determining whether there is a consensus against capital punishment for the rape of a child."
The Court concluded that "there is a distinction between intentional first-degree murder on the one hand and nonhomicide crimes against individuals, even including child rape, on the other. The latter crimes may be devastating in their harm, as here, but in terms of moral depravity and of the injury to the person and to the public, they cannot compare to murder in their severity and irrevocability."
In homage to the criminal apologist National Association of Social Workers [NASW] amicus brief, the Court found that "as to deterrence, the evidence suggests that the death penalty may not result in more effective enforcement, but may add to the risk of nonreporting of child rape out of fear of negative consequences for the perpetrator, especially if he is a family member. And, by in effect making the punishment for child rape and murder equivalent, a State may remove a strong incentive for the rapist not to kill his victim."
Justice Alito, in mock restraint, began the dissenting opinion with: "the Court today holds that the Eighth Amendment categorically prohibits the imposition of the death penalty for the crime of raping a child. This is so, according to the Court, no matter how young the child, no matter how many times the child is raped, no matter how many children the perpetrator rapes, no matter how sadistic the crime, no matter how much physical or psychological trauma is inflicted, and no matter how heinous the perpetrator's prior criminal record may be."
The dissent found that "the Court has provided no coherent explanation for today's decision" in its "emerging national consensus" analysis. As to the majority's "own judgment" regarding the acceptability of the death penalty, the dissent argued that most of that discussion is not pertinent to the Eighth Amendment question at hand:
In homage to the criminal apologist National Association of Social Workers [NASW] amicus brief, the Court found that "as to deterrence, the evidence suggests that the death penalty may not result in more effective enforcement, but may add to the risk of nonreporting of child rape out of fear of negative consequences for the perpetrator, especially if he is a family member. And, by in effect making the punishment for child rape and murder equivalent, a State may remove a strong incentive for the rapist not to kill his victim."
Justice Alito, in mock restraint, began the dissenting opinion with: "the Court today holds that the Eighth Amendment categorically prohibits the imposition of the death penalty for the crime of raping a child. This is so, according to the Court, no matter how young the child, no matter how many times the child is raped, no matter how many children the perpetrator rapes, no matter how sadistic the crime, no matter how much physical or psychological trauma is inflicted, and no matter how heinous the perpetrator's prior criminal record may be."
The dissent found that "the Court has provided no coherent explanation for today's decision" in its "emerging national consensus" analysis. As to the majority's "own judgment" regarding the acceptability of the death penalty, the dissent argued that most of that discussion is not pertinent to the Eighth Amendment question at hand:
A major theme of the Court's opinion is that permitting the death penalty in child-rape cases is not in the best interests of the victims of these crimes and society at large. In this vein, the Court suggests that it is more painful for child-rape victims to testify when the prosecution is seeking the death penalty. The Court also argues that "a State that punishes child rape by death may remove a strong incentive for the rapist not to kill the victim," and may discourage the reporting of child rape. These policy arguments, whatever their merits, are simply not pertinent to the question whether the death penalty is "cruel and unusual" punishment.The dissent sums up its position, and in my opinion the core of this debate, by asking this essential question:
With respect to the question of moral depravity, is it really true that every person who is convicted of capital murder and sentenced to death is more morally depraved than every child rapist? Consider the following two cases. In the first, a defendant robs a convenience store and watches as his accomplice shoots the store owner. The defendant acts recklessly, but was not the triggerman and did not intend the killing. In the second case, a previously convicted child rapist kidnaps, repeatedly rapes, and tortures multiple child victims. Is it clear that the first defendant is more morally depraved than the second?In terms of moral depravity, I can imagine no worse a crime then the rape of a child. In fact, the rape of children is increasingly primarily for the production of child pornography. The lifelong impact of the actual rape, combined with the increasingly highly sought worldwide distribution of pictures and movies of the rape, make this crime like no other.
I have no doubt that, under the prevailing standards of our society, robbery . . . does not evidence the same degree of moral depravity as the brutal rape of a young child. Indeed, 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.
Very few posts have garnered the quantity and quality (oftentimes vitriolic) that this one has, including countless demands to unsubscribe from the blog. I will post a snapshot of the comments here anonymously with the hope of continuing this debate in a wide ranging constructive manner.
I understand that this issue was not before the Court, but would you perhaps agree that the death penalty for anything is an outmoded idea? Doesn't the research show the DP is ineffective as a deterrent? Doesn't having the DP put the taxpayers through enormous expense & the legal system through enormous overload? Wouldn't we all be better off if everyone who would now get the death penalty got LWOP? Might the Court have been far more willing to put child rape on a par with murder if the sentence did not involve state-sanctioned homicide?
Honestly, I’m not a big supporter of the death penalty at all. I think it’s ineffective, expensive and probably not a deterrent to murder. I also think there is a huge potential for wrongful convictions.
That being said, if we are going to kill anyone we should kill these people. I don’t buy it that death is the ultimate crime. And given that so many pedophiles are now photographing and filming the rape and exploitation, the wrongful conviction danger is less of an issue.
Some of these guys do get LWOP. Surprisingly many do not. In fact some get just 10 or 15 years. There are lots and lots of sentencing disparities.
Much as I am troubled by pedophiles and child rape, I am greatly relieved that the Supreme Court decided as it did. For me, capital punishment is a (domestic) watershed issue, and anything that reduces it is good.
Going down that road can be a very slippery slope.
Thanks! Excellent commentary! Excellent insights! The dissent of Justice Alito proves that the majority of the Court really had to stretch to come up with this decision which is not good for children at risk.
Taking someones life seems to me the ultimate evil one can do to an individual or to humanity, (recognizing that some other offenses can be as horrendous, and that can ruin a person's life) but if killing someone would prevent his/her killing someone else, it would have a rational. But this does not apply to capital punishment. When people are executed they then are as helpless as their victims were.
Some opponents of CP draw the line at the heinousness of the crime. That certainly has strong emotional appeal, but heinousness can be very subjective, including who was the murderer and who was the victim. Many kinds of prejudice, including racial, can play into that, replacing objectivity.
My concern is not as much about convicted killers as it is about what kind of people we are, and how we value human life. Many primitive societies performed human sacrifice. With each execution, I wonder how little we have come from that.
Finally, execution does not right any wrongs.
Sydney Harris, the late columnists, and my favorite, said "To kill a murderer is simply to accept his point of view."
Read this in the paper today and the Supreme Court also said we may have our guns in the house for self defense.
Since most sex abuse occurs in the home, perhaps the answer is to arm all the kids . . . This was Archie Bunker's solution to hijacking in the 1970s, pass out pistols to all the passengers when they board and collect them at the end of the flight.
No, rapists didn't win, we won. We put one more limit on the disgraceful use of capital punishment. Capital punishment is not a deterrent, it is a remnant of a lower form of behavior which demeans us all, harms those who inflict it, and which has been rejected by almost every civilized nation. And when issues of importance to children and families get to the High Court, do you think the Scalia crowd are going to be on the right side?
More than this decision, those interested in protecting children should focus more on the battle at the state level to repeal statutes of limitation on prosecutions for sexual abuse of children. Read Marcy Hamilton's book, Justice Denied,to find out how this might put people in jail instead of leaving them loose to abuse more children. Death penalty or no death penalty doesn't really address the issue. My understanding is that there is no clear evidence that the death penalty deters, so the Supreme Court is, in this case, addressing a relatively trivial piece of the whole.
Not that it will change anyone's mind, but today's New York Times states:
In Court Ruling on Executions, a Factual Flaw
By LINDA GREENHOUSE
WASHINGTON — When the Supreme Court ruled last week that the death penalty for raping a child was unconstitutional, the majority noted that a child rapist could face the ultimate penalty in only six states — not in any of the 30 other states that have the death penalty, and not under the jurisdiction of the federal government either.
This inventory of jurisdictions was a central part of the court’s analysis, the foundation for Justice Anthony M. Kennedy’s conclusion in his majority opinion that capital punishment for child rape was contrary to the “evolving standards of decency” by which the court judges how the death penalty is applied.
It turns out that Justice Kennedy’s confident assertion about the absence of federal law was wrong.
A military law blog pointed out over the weekend that Congress, in fact, revised the sex crimes section of the Uniform Code of Military Justice in 2006 to add child rape to the military death penalty. The revisions were in the National Defense Authorization Act that year. President Bush signed that bill into law and then, last September, carried the changes forward by issuing Executive Order 13447, which put the provisions into the 2008 edition of the Manual for Courts-Martial.
Anyone in the federal government — or anywhere else, for that matter — who knew about these developments did not tell the court. Not one of the 10 briefs filed in the case, Kennedy v. Louisiana, mentioned it. The Office of the Solicitor General, which represents the federal government in the Supreme Court, did not even file a brief, evidently having concluded that the federal government had no stake in whether Louisiana’s death penalty for child rape was constitutional.
The provision was the subject of a post over the weekend on the blog run by Dwight Sullivan, a colonel in the Marine Corps Reserve who now works for the Air Force as a civilian defense lawyer handling death penalty appeals.
Mr. Sullivan was reading the Supreme Court’s decision on a plane and was surprised to see no mention of the military statute. “We’re not talking about ancient history,” he said in an interview. “This happened in 2006.”
His titled his blog post “The Supremes Dis the Military Justice System.”
. . .
The government has 25 days to ask the Court to reconsider its ruling.
* * * NEWS FLASH * * *
Yesterday, Louisiana prosecutors asked the U.S. Supreme Court to revisit its recent decision in this case.
The unusual request is based on the failure of anyone involved in the case -- lawyers on both sides as well as the justices -- to take account of a change in federal law in 2006 that authorizes the death penalty for members of the military who are convicted of child rape.
The Court almost never grants such requests, but lawyers for Louisiana said their situation was different because the 5-4 decision written by Justice Anthony Kennedy relied in part on what Kennedy called a "national consensus" against executing convicted rapists.
The main author of Monday's filing with the Court was Georgetown University law professor Neal Katyal, who has previously represented Guantanamo Bay detainees at the Supreme Court.
It is unclear when the justices will take up the request. It takes five justices, a majority of the court, to reconsider a ruling.
If the rapists knew they were going to die for child molestation, they would kill their victims so they would feel like justice was served. Then, you would have more dead children, greiving parents, etc.
I, however, believe that murder is far worse than child molestation. If a life was taken, your like should be given up. If you don't kill anybody, you shouldn't get capital punishment.
Too many people are emotional rather than reasonable. The punishment for molestation should be life in prison without the possibility of parole, NO EXCEPTIONS.
I do agree with the death penalty for murder in the 1st degree ONLY.