‘No death sentence for child rape’

Justice Anthony M Kennedy said there was “a distinction between intentional first-degree murder on the one hand and non-homicide crimes against individual persons”, even “devastating” crimes like the rape of a child, on the other.

The decision was the third in the last six years to place a categorical limitation on capital punishment. In 2002, the court barred the execution of mentally challenged defendants. In 2005, it ruled that the Constitution bars the death penalty for crimes committed before the age of 18.

He said that while the court’s death penalty jurisprudence “remains sound”, it should not be expanded to cover crimes for which no one has been executed in the US for the past 44 years.

The case, Kennedy vs Louisiana, was an appeal by one of the two Louisiana inmates, Patrick Kennedy. He was convicted and sentenced to death in 2003 for raping his 8-year-old stepdaughter, whose injuries were severe enough to require emergency surgery. The Louisiana Supreme Court upheld Kennedy’s conviction and rejected his challenge to the constitutionality of his sentence.

The US Supreme Court prohibited capital punishment for rape in a 1977 case, Coker vs Georgia, in which the victim, while only 16 years old, was married and had the legal status of an adult. It was not clear at the time whether that decision was limited to the rape of an adult woman, or whether it barred the death penalty for any rape.

The court on Wednesday treated the issue of capital punishment for child rape as a fresh question, not governed by any existing precedent. As a matter of constitutional analysis, the question in the case was whether the death penalty was so disproportionate to the offence as to amount to cruel and unusual punishment.

Justice Kennedy said the majority had reached its conclusion based on “our own independent judgment” about the implications of extending the death penalty to child rape as well as on the fact that the great majority of states have declined to do so.

The Louisiana law extending the death penalty to the rape of children under the age of 12 dates to 1995. The states that followed were Georgia, Montana, Oklahoma, South Carolina and Texas. Unlike Louisiana, those states all require that a defendant have a previous rape conviction or some other aggravating factor in order to be subject to the death penalty, and no one has yet been sentenced to death under any of the laws.

Justice Kennedy said there was thus a national consensus against applying capital punishment for the crime.

In a dissenting opinion, Justice Samuel A Alito Jr disputed this conclusion. He said that because many judges had interpreted the 1977 Coker decision as barring death penalty for any rape, state legislatures “have operated under the ominous shadow” of that decision and “have not been free to express their own understanding of our society’s standards of decency”.