Barring the death penalty for any crime that does not take the life of an individual victim, the Supreme Court ruled Wednesday that it is unconstitutional to impose the death penalty for the crime of raping a child. If the victim does not die and death was not intended, capital punishment for that crime violates the Eighth Amendment, the Court ruled in an opinion by Justice Anthony M. Kennedy.  The case was Patrick Kennedy v. Louisiana (07-343).  The broad declaration that death sentences should be reserved “for crimes that take the life of the victim” will apply, the Court said, to crimes against individuals — thus leaving intact, for example, a possible death sentence for treason.

Part of the Court’s rationale for nullifying a death sentence for raping a child was that the child victim gets enlisted, perhaps repeatedly, to recount the crime, forcing on the child “a moral choice” that the youngster is not mature enough to make. “The way the death penalty here involves the child victim in its enforcement can compromise a decent legal system,” Justice Kennedy wrote.

The decision split the Court 5-4.  It nullified a Louisiana law that provided capital punishment for raping a child under age 12.  The law was since amended to apply to raping a child under age 13.  Five other states have similar laws.

At the close of Wednesday’s public session, Chief Justice John G. Roberts, Jr., announced that the Court will issue all remaining decisions for the Term at 10 a.m. Thursday.  The test case on whether the Second Amendment protects an individual right to possess a gun is among those remaining (District of Columbia v. Heller, 07-290).  The others still pending are cases on the constitutionality of the so-called “Millionaire’s Amendment” on campaign finance (Davis v. FEC, 07-320), and on federal regulators’ power to undo wholesale energy sales contracts (Morgan Stanley Capital v. Public Utility District, 06-1457, and a companion case).

Justice Kennedy’s majority opinion in the Louisiana capital case was supported by Justices Stephen G. Breyer, Ruth Bader Ginsburg, David H. Souter and John Paul Stevens.  Justice Samuel A. Alito, Jr., wrote for the dissenters; he was joined by Chief Justice Roberts and Justices Antonin Scalia and Clarence Thomas.

Justice Alito, rejecting the majority view that there is now a national consensus against executing one who rapes a child, argued that the focus should not be on the fact that only six states now have such laws. More might have taken the step, Alito argued, if the Supreme Court in barring execution for raping an adult in 1977 had not given state legislators “good reason to fear” that they never could pass such a law.  The broad dicta in that case, Alito said, was not supported by all of those in the majority in Coker v. Georgia.  Since then, the Justice added, state courts have read the Coker opinion in its widest sweep, “stunting legislative consideration” of the death penalty when a child was the victim.

Posted in Kennedy v. Louisiana, Uncategorized