FindLaw.com columnist Marci Hamilton writes, "The Supreme Court Considers Whether Imposing the Death Penalty for Child Rape Is Constitutional: The Arguments For and Against the Penalty."
Opponents of the death penalty for child rape have argued that it is a bad idea, because it will deter reporting of the crime, given the severity of the punishment. That seems far-fetched, however. To the contrary, you might get more reporting if the victim thinks that the predator, if convicted, truly will no longer be able to inflict abuse on them. The same result would follow, however, if the justice system reliably put away known child abusers instead of cycling them back into society. Thus, the death penalty and life sentences have the capacity to motivate victims to report in order to remove the predator from their lives. (To be sure, survivors of child sex abuse face many hurdles to reporting, which may not be affected in any way whatsoever by the potential penalty.)
In sum, whether or not the Court upholds the death penalty for child abusers this Term, the entrenched barriers to identifying predators will not be eliminated, or even reduced. For that reason, from the perspective of the child being abused today or the survivor trying to cope in the wake of abuse decades ago, the case is a lot of hype - a paper battle that distracts from the far more essential battle for the reforms that are truly necessary if justice and decency are to be served.
McClatchy Newspapers' Michael Doyle writes, "High court weighs death for child rape," via the Fort Worth Star-Telegram.
In a 1977 decision out of Georgia, the Supreme Court struck down the death penalty for a man who had been convicted of raping a 16-year-old girl. She was deemed an adult. The question now is whether this precedent extends to cases involving the rape of a child.
Texas and Louisiana are among five states that permit child rapists to be executed. Missouri and other states have been debating adopting similar punishments, and law-and-order advocates contend that there's a push toward expanding the death penalty.
"The trend ... has been more and more states are passing statutes imposing the death penalty in situations that do not result in death," Chief Justice John Roberts said.
This could prove to be the key to the latest case.
Kennedy's attorneys argue that the death penalty violates the Eighth Amendment's ban on "cruel and unusual punishment," because it's disproportionately harsh for a nonfatal crime. In recent years, for instance, the court has cited laws passed by states and other countries in striking down the death penalty for juveniles.
On Wednesday, Roberts and Justice Antonin Scalia said that standards were moving in the direction of tougher punishment for those who harmed children.
"It's the trend that counts," Scalia said.
Kennedy's attorneys, and death penalty skeptics more generally, counter that there can be no general consensus when only two men have been sentenced to death for child rape in the past 13 years. The other condemned inmate, imprisoned with Kennedy in Louisiana, was convicted of raping a 5-year-old girl.
No one has been executed solely for the crime of rape in the United States in the past 43 years, Kennedy's attorney Jeffrey Fisher, a Stanford Law School professor, told the court.
This is excerpted from Linda Greenhouse's report on the Baze decision:
Immediately after announcing the lethal injection decision on Wednesday, the court turned to the argument in the Louisiana case on the constitutionality of the death penalty for raping a child.
It has been 43 years since anyone has been executed in the United States for rape. In 1977, with 30 men on death row for rape, the court ruled in a Georgia case that the Eighth Amendment prohibited the death penalty for that crime. The victim in that case, Coker v. Georgia, was a 16-year-old married woman who was referred to as an adult throughout the opinion.
While the question presented to the court in the Coker case did not differentiate between adults and children, the decision for years was widely interpreted as barring capital punishment for any rape. Nonetheless, Louisiana enacted its law in 1995, and several other states followed suit, for a current total of five that permit the death penalty for the rape of a child.
The justices’ questions from the bench indicated that most saw the Coker decision as limited to adult victims, with the issue of whether death could be imposed for raping a child still an open one, not governed by precedent. Patrick Kennedy, the defendant in this case, Kennedy v. Louisiana, No. 07-343, was convicted of raping his 8-year-old step-daughter.
Only in Louisiana could he have received the death penalty, because the other states, Montana, Oklahoma, South Carolina and Texas, apply their laws only to those with prior convictions. Mr. Kennedy’s lawyer, Jeffrey L. Fisher, argued that this demonstrated a “national consensus” against the penalty, at least for a first-time offender.
The New Orleans Times-Picayune has, "Supreme Court debates execution in child rape case."
Members of the U.S. Supreme Court's conservative wing Wednesday vigorously defended Louisiana's toughest-in-the-nation law allowing the death penalty for those who rape children.
The death sentence imposed on Patrick Kennedy, 44, of Harvey, would bring the first execution in the United States since 1964 of someone for any crime other than murder and presents the court with the chance to settle long-simmering questions about just how far capital punishment should reach.
Louisiana is one of five states to allow the death penalty in child rape cases. Unlike the others, however, juries in Louisiana can impose death on first-time offenders.
And:
Justice Stephen Breyer took the lead in challenging Louisiana's statute, which was upheld last year by the state Supreme Court. Breyer said that allowing the execution of child rapists would prompt state legislatures to extend the application of capital punishment to all manner of crimes.
"I'm not a moralist. I'm a judge. As a judge, I look at the law. It seems for 43 years no one has been executed but for murder," Breyer said. "If I accept your argument, have I then opened the door so that states will find lots of different crimes which are seriously horrible?"
Earlier coverage of Kennedy v. Louisiana is here and here. The Jessica's law index is here. More on Coker v. Georgia, the 1977 U.S. Supreme Court that ruled the death penalty an unconstitutional punishment for non-homicidal rape of an adult, is here.
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