Justices Bar Death Penalty for the Rape of a ChildWASHINGTON — The death penalty is unconstitutional as a punishment for the rape of a child, a sharply divided Supreme Court ruled on 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,” like 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 nonhomicide crimes against individual persons,” even “devastating” crimes like the rape of a child, on the other.
Justice Kennedy said on 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 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.
