WASHINGTON - A divided Supreme Court effectively slammed the door yesterday on the prospect of expanding capital punishment in America, holding that the death penalty for violent crimes that do not end in a death is unconstitutional, regardless of the victim's age.
In the 5-4 decision, the court overturned a Louisiana law that called for the death penalty for raping a child and removed from that state's death row a man convicted of the rape of his 8-year-old stepdaughter.
Justice Anthony M. Kennedy wrote the opinion saying, in essence, that the crime, awful as it is, does not merit capital punishment. "The incongruity between the crime of child rape and the harshness of the death penalty poses risks of over-punishment and counsels against a constitutional ruling that the death penalty can be expanded to include this offense," Kennedy wrote.
The opinion is one of a series of Supreme Court decisions in recent years scaling back the death penalty and citing a national consensus on limiting its application. In 2002, the court held that states could not execute the mentally retarded. Three years later, the court prohibited defendants who were juveniles at the time they committed murder from being put to death.
"We live in a society that appears to embrace some aspects of the death penalty, but the direction we have gone in recent years is to limit it, not broaden it," said Billy Sothern, a New Orleans lawyer who was part of the team that represented the defendant, Patrick Kennedy. He was one of only two men nationwide facing execution for crimes that didn't result in a death, both in Louisiana.
Sen. Barack Obama, the presumptive Democratic nominee for president, criticized the court's decision at a Chicago news conference. "I have said repeatedly that I think that the death penalty should be applied in very narrow circumstances for the most egregious of crimes," he said. "I think that the rape of a small child, 6 or 8 years old, is a heinous crime, and if a state makes a decision that under narrow, limited, well-defined circumstances, the death penalty is at least potentially applicable, that that does not violate our Constitution."
Obama has frequently cited the near-abolishment of the death penalty in Illinois as one of his top legislative accomplishments.
His likely Republican opponent, Sen. John McCain, also disagreed with the ruling. "Today's Supreme Court ruling is an assault on law enforcement's efforts to punish these heinous felons for the most despicable crime," McCain said. "That there is a judge anywhere in America who does not believe that the rape of a child represents the most heinous of crimes, which is deserving of the most serious of punishments, is profoundly disturbing."
The four members of the court's conservative wing also sharply criticized the decision, saying that a small but growing number of states had determined that the rape of a child merited the death penalty and that the court's majority was interfering with that judgment.
"The harm that is caused to the victims and to society at large by the worst child rapists is grave," wrote Justice Samuel A. Alito Jr. "It is the judgment of the Louisiana lawmakers and those in an increasing number of other states that these harms justify the death penalty." Alito was joined in his dissent by Justices Antonin Scalia and Clarence Thomas and Chief Justice John Roberts Jr.
The court in 1977 first ruled that the death penalty for rapists was unconstitutional under the Eighth Amendment's ban on cruel and unusual punishment. But that decision involved the rape of a 16-year-old girl, whom the court considered an adult.
More than a decade ago, Louisiana passed a statute making rape a capital crime if the victim was younger than 12, contending that the rape of a child placed the crime in a different category.
Several states, such as Texas, Georgia and South Carolina, have passed laws similar to Louisiana's, although they all require that the assailant committed a second, separate offense before the death penalty is an option.
Kennedy's opinion cited several policy concerns that led the majority to conclude the Louisiana law was flawed. Victims, Kennedy said, were less likely to come forward to implicate family members who might be executed. Kennedy also noted that victims would likely have to testify repeatedly during the extended appeals process that typically marks capital cases, prolonging their trauma.
He was joined in the opinion by Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen G. Breyer.
James Oliphant writes for the Chicago Tribune