U.S. Supreme Court

5-4 Ruling Bars Death Penalty for Child Rape

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The U.S. Supreme Court has ruled 5-4 that the death penalty for child rape is unconstitutional in cases that do not result in death, SCOTUSblog reports.

Justice Anthony M. Kennedy wrote the majority opinion (PDF posted by SCOTUSblog) for the divided court.

“Based both on consensus and our own independent judgment, our holding is that a death sentence for one who raped but did not kill a child, and who did not intend to assist another in killing the child, is unconstitutional under the Eighth and Fourteenth Amendments,” Kennedy wrote. He noted that rape is not a capital offense in 44 states, and Louisiana is the only state since 1964 to have sentenced a defendant to death for child rape.

Dissenting from the decision were Chief Justice John G. Roberts Jr. and Justices Samuel A. Alito Jr., Antonin Scalia and Clarence Thomas.

The petitioner in the case, Patrick Kennedy, was on Louisiana’s death row for raping his 8-year-old stepdaughter. At issue was whether the Supreme Court’s 1977 decision in Coker v. Georgia, which struck down the death penalty for a man who raped a 16-year-old girl, bars capital punishment in cases involving the rape of younger children.

Referring to “evolving standards of decency,” Kennedy said the court must limit the death penalty to offenders who commit a narrow category of the most serious crimes.

Using the death penalty for reasons of retribution can pose serious concerns, Kennedy 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.

The dissent by Justice Alito argues that the majority’s reasons for striking down the death penalty—a national consensus and its own independent judgment—are not a sufficient basis for its “sweeping conclusion.”

The majority ruling applies, Alito wrote, “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.”

He argues there is no national consensus, in part because dicta in Coker discouraged states from enacting the death penalty for child rape.

“Once all of the court’s irrelevant arguments are put aside, it is apparent that the court has provided no coherent explanation for today’s decision,” Alito writes.

The opinion is Kennedy v. Louisiana.

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