<\/p>\n
Supreme Court Rejects Death Penalty for Child Rape <\/p>\n
WASHINGTON
\n\u2014 The death penalty is unconstitutional as a punishment for the rape of
\na child, a sharply divided Supreme Court ruled Wednesday. <\/p>\n
The
\n5-to-4 decision overturned death penalty laws in Louisiana and five
\nother states. The only two men in the country who have been sentenced to
\ndeath for the crime of child rape, both in Louisiana, will receive new
\nsentences of life without parole. <\/p>\n
The court went beyond the
\nquestion in the case to rule out the death penalty for any individual
\ncrime \u2014 as opposed to \u201coffenses against the state,\u201d such as treason or
\nespionage \u2014 \u201cwhere the victim\u2019s life was not taken.\u201d <\/p>\n
Justice
\nAnthony M. Kennedy, writing for the majority, said there was \u201ca
\ndistinction between intentional first-degree murder on the one hand and
\nnon-homicide crimes against individual persons,\u201d even such \u201cdevastating\u201d
\ncrimes as the rape of a child, on the other. <\/p>\n
The decision was
\nthe third in the last six years to place a categorical limitation on
\ncapital punishment. In 2002, the court barred the execution of mentally
\nretarded defendants. In 2005, it ruled that the Constitution bars the
\ndeath penalty for crimes committed before the age of 18. <\/p>\n
Nonetheless,
\ndespite this trend toward narrowing the application of the death
\npenalty, there was no suggestion from the majority that the court was
\nmoving toward the abolition of capital punishment, which Justice John
\nPaul Stevens called for in an opinion two months ago that no other
\njustice joined. <\/p>\n
Justice Kennedy said Wednesday that while the
\ncourt\u2019s death penalty jurisprudence \u201cremains sound,\u201d it should not be
\nexpanded to cover a crime for which no one has been executed in the
\nUnited States for the past 44 years. <\/p>\n
The case, Kennedy v.
\nLouisiana, No. 07-343, was an appeal by one of the two Louisiana
\ninmates, Patrick Kennedy. He was convicted and sentenced to death in
\n2003 for raping his 8-year-old stepdaughter, whose injuries were severe
\nenough to require emergency surgery. The Louisiana Supreme Court upheld
\nMr. Kennedy\u2019s conviction and rejected his challenge to the
\nconstitutionality of his sentence. <\/p>\n
The United States Supreme
\nCourt prohibited capital punishment for rape in a 1977 case, Coker v.
\nGeorgia, in which the victim, while only 16 years old, was married and
\nhad the legal status of an adult. It was not clear at the time whether
\nthat decision was limited to the rape of an adult woman, or whether it
\nbarred the death penalty for any rape. The court on Wednesday treated
\nthe issue of capital punishment for child rape as a fresh question, not
\ngoverned by any existing precedent. As a matter of constitutional
\nanalysis, the question in the case was whether the death penalty was so
\ndisproportionate to the offense as to amount to cruel and unusual
\npunishment, in violation of the Eighth Amendment. The court\u2019s modern
\nprecedents interpret the Eighth Amendment according to \u201cthe evolving
\nstandards of decency that mark the progress of a maturing society.\u201d <\/p>\n
Using
\nthat benchmark, Justice Kennedy said the majority had reached its
\nconclusion based on \u201cour own independent judgment\u201d about the
\nimplications of extending the death penalty to child rape as well as on
\nthe fact that the great majority of states have declined to do so. <\/p>\n
The
\nLouisiana law extending the death penalty to the rape of children under
\nthe age of 12 dates to 1995. The states that followed were Georgia,
\nMontana, Oklahoma, South Carolina, and Texas. Unlike Louisiana, those
\nstates all require that a defendant have a previous rape conviction or
\nsome other aggravating factor in order to be subject to the death
\npenalty, and no one has yet been sentenced to death under any of the
\nlaws. <\/p>\n
Justice Kennedy said there was thus a national consensus against applying capital punishment for the crime. <\/p>\n
In
\na dissenting opinion, Justice Samuel A. Alito Jr. sharply disputed this
\nconclusion. He said that because many judges and lawyers had
\ninterpreted the 1977 Coker decision as barring capital punishment for
\nany rape, state legislatures \u201chave operated under the ominous shadow\u201d of
\nthat decision \u201cand thus have not been free to express their own
\nunderstanding of our society\u2019s standards of decency.\u201d <\/p>\n
The fact
\nthat six states in modern times have nonetheless enacted such laws,
\nJustice Alito said, \u201cmight represent the beginning of a new evolutionary
\nline\u201d that \u201cwould not be out of step with changes in our society\u2019s
\nthinking since Coker was decided.\u201d He said there were abundant
\nindications that society had become more aware of and concerned about
\nsex crimes against children. <\/p>\n
Those who voted with Justice Kennedy
\nin the majority were Justice Stevens and Justices David H. Souter, Ruth
\nBader Ginsburg, and Stephen G. Breyer. Chief Justice John G. Roberts
\nJr. joined the dissent, along with Justices Antonin Scalia and Clarence
\nThomas. <\/p>\n
Addressing the separate question of the court\u2019s \u201cown
\njudgment,\u201d Justice Kennedy suggested that the flow of death penalty
\ncases for child rape could overwhelm the country\u2019s criminal justice
\nsystem. He noted that in 2005 there were 5,702 reported rapes of
\nchildren under the age of 12. <\/p>\n
\u201cIn this context, which involves a
\ncrime that in many cases will overwhelm a decent person\u2019s judgment,\u201d
\nJustice Kennedy said, \u201cwe have no confidence that the imposition of the
\ndeath penalty would not be so arbitrary as to be freakish.\u201d <\/p>\n
He
\ncontinued: \u201cWe cannot sanction this result when the harm to the victim,
\nthough grave, cannot be quantified in the same way as death of the
\nvictim.\u201d <\/p>\n
Justice Kennedy also said capital punishment for child
\nrape presented specific problems, including the \u201cspecial risks of
\nunreliable testimony\u201d by children and the fact that the crime often
\noccurs within families. Families might be inclined to \u201cshield the
\nperpetrator from discovery\u201d when the penalty is death, he said, leading
\nto an increase in the problem of under-reporting of these crimes. <\/p>\n
Justice
\nAlito, in his dissenting opinion, said these concerns were \u201cpolicy
\narguments\u201d that were \u201csimply not pertinent to the question whether the
\ndeath penalty is \u2018cruel and unusual\u2019 punishment.\u201d He said the Eighth
\nAmendment \u201cdoes not authorize this court to strike down federal or state
\ncriminal laws on the ground that they are not in the best interests of
\ncrime victims or the broader society.\u201d <\/p>\n
Both presidential
\ncandidates criticized the death penalty decision. Senator John McCain,
\nthe presumptive Republican nominee, said: \u201cThat there is a judge
\nanywhere in America who does not believe that the rape of a child
\nrepresents the most heinous of crimes, which is deserving of the most
\nserious of punishments, is profoundly disturbing\u201d He called the decision
\n\u201can assault on law enforcement\u2019s efforts to punish these heinous felons
\nfor the most despicable crime.\u201d <\/p>\n
Senator Barack Obama, the
\npresumptive Democratic nominee, said, \u201cI think that the rape of a small
\nchild, 6 or 8 years old, is a heinous crime, and if a state makes a
\ndecision under narrow, limited, well-defined circumstances, that the
\ndeath penalty is at least potentially applicable, that does not violate
\nour Constitution.\u201d He added that the Supreme Court should have set
\nconditions for imposing the death penalty for the crime, \u201cbut it
\nbasically had a blanket prohibition, and I disagree with the decision.\u201d <\/p>\n
In
\na second decision on Wednesday, the court ruled that the introduction
\nat trial of statements that a murder victim had made to the police
\nviolated the constitutional rights of the man who was on trial for
\nkilling her. <\/p>\n
Before her death, the victim had summoned the police
\nto complain that Dwayne Giles, later charged with her murder, had
\nthreatened to kill her. Writing for the court, Justice Scalia said that
\nuse of the statement violated Mr. Giles\u2019s Sixth Amendment right to
\ncross-examine the witnesses against him, unless the prosecution could
\nfirst prove that he deliberately killed a witness was to make her
\nunavailable to testify. Mr. Giles claimed self-defense in the killing. <\/p>\n
The
\nvote in the case, Giles v. California, No. 07-6053, was 6 to 3.
\nJustices Breyer, Stevens, and Kennedy dissented. The decision overturned
\na ruling by the California Supreme Court, which had affirmed Mr.
\nGiles\u2019s murder conviction, but left the state free to try and prove the
\nnecessary intent. <\/p>\n