COMMENTARY: Supreme Court Averts Danger by Disallowing the Death Penalty for Child Rape

by Jeff Stanglin, J.D.

July 3, 2008

The Supreme Court has undoubtedly lurched toward conservatism in the past 20 years, but death penalty cases have largely been an anomaly. Just in the past six years, the Court has banned the execution of juveniles and mentally retarded individuals, ruling that such executions violate the Eighth Amendment’s prohibition against cruel and unusual punishment. On this same ground, the Court in Kennedy v. Louisiana rebuked an overeager legislature June 25 by ruling that states cannot execute a person found guilty of raping a child.

The results of this case are monumental. First, the ruling stopped the impending execution of a person guilty of a crime that did not result in death. Second, it will prevent legislatures from enacting more statutes that authorize capital punishment for other non-homicide crimes, which would have been the inevitable result had the Court ruled differently.

Constitutional originalists — those who believe the Constitution means exactly the same thing as it did more than 200 years ago — have long loathed the Court’s analysis in death penalty cases. That is because the Court’s reason for prohibiting the death penalty in many cases has largely hinged on what it calls “the evolving standards of decency that mark the progress of a maturing society.” Thus, what might not have been cruel and unusual punishment in 1791 — when the Eighth Amendment was ratified — might indeed be so today.

Consequently, the Court’s ruling expresses the idea that it is repugnant to an enlightened society for the state to kill a person for a crime that does not result in death. It said as much in 1977 when it declined to extend the death penalty to a person guilty of raping an adult woman in Coker v. Georgia.

Had the Court ruled differently in Kennedy, the Court’s decision in Coker would have been in jeopardy. Legislatures would have had a green light to enact statutes imposing death for other non-homicide crimes, justifying to constituents that death was proper for the perpetrator of any brutal crime, regardless of whether it involved rape or murder. And with a conservative court, those new statutes just might have passed constitutional muster.

Thankfully, however, the Court has drawn a line, further expanding what the Eighth Amendment disallows. Thus, at least for now, the Court’s reasoning remains the same in death penalty cases: Capital punishment is allowed to be imposed only for the crime of murder. That is, the punishment should fit the crime, and until the Court rules that the Eighth Amendment does not allow the death penalty at all — if it ever makes that ruling — capital punishment should be reserved for only the most serious murders. It should not be imposed for other crimes by the authority of statutes that were written after passionate arguments from legislators, who must appear “tough on crime” if they want to keep their jobs.

Rape is a heinous act, and child rape is even worse. It often results in irreparable physical and psychological trauma that endures for the rest of the victim’s life. But this case was not about child rape. It was about the Court recognizing that killing a person for a non-homicidal act would have caused a regression in our social values and sent us teetering on the brink of a dangerous and slippery slope.

Jeff Stanglin is a freelance writer based in Dallas. He previously practiced criminal law and personal injury law in Texas.