Supreme Court Rejects Death Penalty for Child Rape WASHINGTO

Supreme Court Rejects Death Penalty for Child Rape WASHINGTON— The death penalty is unconstitutional as a punishment for the rape ofa child, a sharply divided Supreme Court ruled Wednesday. The5-to-4 decision overturned death penalty laws in Louisiana and fiveother states. The only two men in the country who have been sentenced todeath for the crime of child rape, both in Louisiana, will receive newsentences of life without parole. The court went beyond thequestion in the case to rule out the death penalty for any individualcrime — as opposed to “offenses against the state,” such as treason orespionage — “where the victim’s life was not taken.” JusticeAnthony M. Kennedy, writing for the majority, said there was “adistinction between intentional first-degree murder on the one hand andnon-homicide crimes against individual persons,” even such “devastating”crimes as the rape of a child, on the other. The decision wasthe third in the last six years to place a categorical limitation oncapital punishment. In 2002, the court barred the execution of mentallyretarded defendants. In 2005, it ruled that the Constitution bars thedeath penalty for crimes committed before the age of 18. Nonetheless,despite this trend toward narrowing the application of the deathpenalty, there was no suggestion from the majority that the court wasmoving toward the abolition of capital punishment, which Justice JohnPaul Stevens called for in an opinion two months ago that no otherjustice joined. Justice Kennedy said Wednesday that while thecourt’s death penalty jurisprudence “remains sound,” it should not beexpanded to cover a crime for which no one has been executed in theUnited States for the past 44 years. The case, Kennedy v.Louisiana, No. 07-343, was an appeal by one of the two Louisianainmates, Patrick Kennedy. He was convicted and sentenced to death in2003 for raping his 8-year-old stepdaughter, whose injuries were severeenough to require emergency surgery. The Louisiana Supreme Court upheldMr. Kennedy’s conviction and rejected his challenge to theconstitutionality of his sentence. The United States SupremeCourt prohibited capital punishment for rape in a 1977 case, Coker v.Georgia, in which the victim, while only 16 years old, was married andhad the legal status of an adult. It was not clear at the time whetherthat decision was limited to the rape of an adult woman, or whether itbarred the death penalty for any rape. The court on Wednesday treatedthe issue of capital punishment for child rape as a fresh question, notgoverned by any existing precedent. As a matter of constitutionalanalysis, the question in the case was whether the death penalty was sodisproportionate to the offense as to amount to cruel and unusualpunishment, in violation of the Eighth Amendment. The court’s modernprecedents interpret the Eighth Amendment according to “the evolvingstandards of decency that mark the progress of a maturing society.” Usingthat benchmark, Justice Kennedy said the majority had reached itsconclusion based on “our own independent judgment” about theimplications of extending the death penalty to child rape as well as onthe fact that the great majority of states have declined to do so. TheLouisiana law extending the death penalty to the rape of children underthe age of 12 dates to 1995. The states that followed were Georgia,Montana, Oklahoma, South Carolina, and Texas. Unlike Louisiana, thosestates all require that a defendant have a previous rape conviction orsome other aggravating factor in order to be subject to the deathpenalty, and no one has yet been sentenced to death under any of thelaws. Justice Kennedy said there was thus a national consensus against applying capital punishment for the crime. Ina dissenting opinion, Justice Samuel A. Alito Jr. sharply disputed thisconclusion. He said that because many judges and lawyers hadinterpreted the 1977 Coker decision as barring capital punishment forany rape, state legislatures “have operated under the ominous shadow” ofthat decision “and thus have not been free to express their ownunderstanding of our society’s standards of decency.” The factthat six states in modern times have nonetheless enacted such laws,Justice Alito said, “might represent the beginning of a new evolutionaryline” that “would not be out of step with changes in our society’sthinking since Coker was decided.” He said there were abundantindications that society had become more aware of and concerned aboutsex crimes against children. Those who voted with Justice Kennedyin the majority were Justice Stevens and Justices David H. Souter, RuthBader Ginsburg, and Stephen G. Breyer. Chief Justice John G. RobertsJr. joined the dissent, along with Justices Antonin Scalia and ClarenceThomas. Addressing the separate question of the court’s “ownjudgment,” Justice Kennedy suggested that the flow of death penaltycases for child rape could overwhelm the country’s criminal justicesystem. He noted that in 2005 there were 5,702 reported rapes ofchildren under the age of 12. “In this context, which involves acrime that in many cases will overwhelm a decent person’s judgment,”Justice Kennedy said, “we have no confidence that the imposition of thedeath penalty would not be so arbitrary as to be freakish.” Hecontinued: “We cannot sanction this result when the harm to the victim,though grave, cannot be quantified in the same way as death of thevictim.” Justice Kennedy also said capital punishment for childrape presented specific problems, including the “special risks ofunreliable testimony” by children and the fact that the crime oftenoccurs within families. Families might be inclined to “shield theperpetrator from discovery” when the penalty is death, he said, leadingto an increase in the problem of under-reporting of these crimes. JusticeAlito, in his dissenting opinion, said these concerns were “policyarguments” that were “simply not pertinent to the question whether thedeath penalty is ‘cruel and unusual’ punishment.” He said the EighthAmendment “does not authorize this court to strike down federal or statecriminal laws on the ground that they are not in the best interests ofcrime victims or the broader society.” Both presidentialcandidates criticized the death penalty decision. Senator John McCain,the presumptive Republican nominee, said: “That there is a judgeanywhere in America who does not believe that the rape of a childrepresents the most heinous of crimes, which is deserving of the mostserious of punishments, is profoundly disturbing” He called the decision“an assault on law enforcement’s efforts to punish these heinous felonsfor the most despicable crime.” Senator Barack Obama, thepresumptive Democratic nominee, said, “I think that the rape of a smallchild, 6 or 8 years old, is a heinous crime, and if a state makes adecision under narrow, limited, well-defined circumstances, that thedeath penalty is at least potentially applicable, that does not violateour Constitution.” He added that the Supreme Court should have setconditions for imposing the death penalty for the crime, “but itbasically had a blanket prohibition, and I disagree with the decision.” Ina second decision on Wednesday, the court ruled that the introductionat trial of statements that a murder victim had made to the policeviolated the constitutional rights of the man who was on trial forkilling her. Before her death, the victim had summoned the policeto complain that Dwayne Giles, later charged with her murder, hadthreatened to kill her. Writing for the court, Justice Scalia said thatuse of the statement violated Mr. Giles’s Sixth Amendment right tocross-examine the witnesses against him, unless the prosecution couldfirst prove that he deliberately killed a witness was to make herunavailable to testify. Mr. Giles claimed self-defense in the killing. Thevote in the case, Giles v. California, No. 07-6053, was 6 to 3.Justices Breyer, Stevens, and Kennedy dissented. The decision overturneda ruling by the California Supreme Court, which had affirmed Mr.Giles’s murder conviction, but left the state free to try and prove thenecessary intent. Linda Greenhouse, Supreme Court Rejects Death Penalty for Child Rape, nytimes.com, http://www.nytimes.com/2008/06/26/washington/26sco… (last visited March 9, 2010). Giles v. California, 554 US 353 (2008)QUESTION:Do you agree with the ruling? Why or why not? Your response shouldcontain analysis of the law. All citations must be in Bluebook format.