By:  LINDSEY O’NEILL, ESQ.

The U.S. Supreme Court just ruled that the death penalty is unconstitutional in child rape cases.  In a split decision (a 5-4 vote), the Supreme Court struck down Louisiana’s death penalty law for convicted child rapists on the basis that the death penalty constitutes cruel and unusual punishment for the crime of raping a child.  In the underlying case before the court, Patrick Kennedy, 43, of Louisiana, was sentenced to death for raping his 8-year-old stepdaughter (the details of the rape are too horrible to post here).  The Supreme Court’s decision does not overturn the Kennedy’s conviction, but returns the case to the Louisiana courts for resentencing.

The Supreme Court Justices all acknowledged the seriousness of crime of child rape, the devastating harm it causes the victims and the horror it strikes in society.  However, the Justices disagreed whether the death penalty should be banned as unconstitutional. 

Justice Kennedy, writing the majority ruling, acknowledged that the “years of long anguish” and the “permanent and devastating impact” rape has on a child “suggest moral grounds” that may support the death penalty.  However, he concluded that “the death penalty should not be expanded to instances where the victim’s life was not taken.” In support, Justice Kennedy noted that the death penalty has been banned for rape of an adult since 1977, that no executions had occurred in the past 44 years, and that a most of the states already ban the death penalty for any kind of rape.  With those statistics, Justice Kennedy concluded there was a “national consensus” against capital punishment for non-homicide crimes.  (Forty-five states currently ban the death penalty for any kind of rape, and the other five states allow it for child rapists in certain circumstances.) 

The other 4 Justices, however, disagreed that there was a national consensus against capital punishment for child rape and referred to the increasing concern about punishment for child rapist.  Justice Alito disagreed with the majority ruling because it prohibited the death penalty for child rape across the board – “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.”  Justice Alito argued for state lawmakers to use their discretion in determining what factors would warrant the death penalty for cases of convicted child rapists. 

So what do you think?  Society has been increasingly concerned about child rapists.  TV shows like Dateline NBC’s “To Catch a Predator” seem to address those societal concerns.   Did the Supreme Court get it right?  Should the death penalty only be reserved for murder and other crimes where the victim dies – an “eye for an eye” so to speak?  Or, should the death penalty be able to be sought depending on how heinous the crime – whether murder, or brutal child rape, or other horrible crime? 

You can read the court’s opinion in the case of Kennedy v. Louisiana, or you you can visit the court’s website and read all the recent opinions.