As I Predicted, U. S. Supreme Court Finds The Constitution FORBIDS Execution Of Child Rapists Who Do NOT Kill, Or Intend To Kill, Their Victims.

As I predicted here, the U. S. Supreme Court has held in Kennedy V. Louisiana, 07-343, (2008), that the U. S. Constitution's ban on "Cruel and Unusual Punishments" FORBIDS a state from executing a child rapist, who does not kill, or intend to kill, his victim.

Below is a summary from the court:

Louisiana charged petitioner with the aggravated rape of his then-8-year-old stepdaughter. He was convicted and sentenced to death under a state statute authorizing capital punishment for the rape of a child under 12. The State Supreme Court affirmed, rejecting petitioner’s reliance on Coker v. Georgia, 433 U. S. 584, which barred the use of the death penalty as punishment for the rape of an adult
woman but left open the question which, if any, other non homicide crimes can be punished by death consistent with the Eighth Amendment.

Reasoning that children are a class in need of special protection, the state court held child rape to be unique in terms of the harm it inflicts upon the victim and society and concluded that, short of first-degree murder, there is no crime more deserving of death. The court acknowledged that petitioner would be the first person executed since the state law was amended to authorize the death penalty for child rape in 1995, and that Louisiana is in the minority of jurisdictions authorizing death for that crime. However, emphasizing that four more States had capitalized child rape since 1995 and at least eight others had authorized death for other non homicide crimes, as well as that, under Roper v. Simmons, 543 U. S. 551, and Atkins v. Virginia, 536 U. S. 304, it is the direction of change rather than the numerical count that is significant, the court held petitioner’s death sentence to be constitutional.

Held: The Eighth Amendment bars Louisiana from imposing the death penalty for the rape of a child where the crime did not result, and was not intended to result, in the victim’s death.

Editor's comment: The majority opinion based its holding on the principle that "when the law punishes by death, it risks its own sudden descent into brutality, transgressing the constitutional commitment to decency and restraint.
For these reasons we have explained that capital punishment must “be limited to those offenders who commit ‘a narrow category of the most serious crimes’ and whose
extreme culpability makes them ‘the most deserving of execution.’ ” Though the death penalty is not invariably unconstitutional, see Gregg v. Georgia, 428 U. S. 153 (1976), the Court insists upon confining the instances in which the punishment can be imposed."

So "confining the reach of the death penalty" became the Court's calling.

Another important statement made by the Court is this: After reviewing the authorities informed by contemporary norms, including the history of the death penalty for this and other non homicide crimes, current state statutes and new enactments, and the number of executions since 1964, we conclude there is a national consensus against capital punishment for the crime of child rape."

But then the Court did not care much about any "national consensus, as it declared that "[a]s we have said in other Eighth Amendment cases, objective evidence of contemporary values as it relates to punishment for child rape is entitled to great weight, but it does not end our inquiry. “[T]he Constitution contemplates that in the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment.”

So, according to the Court, consensus may be important, but not so important as "the resolution of the question before us, which is informed by our precedents and our own understanding of the Constitution and the rights it secures ...".

The good thing about the decision is that the Court limited its ruling to "... crimes against individual persons", as it chose not to "... address, for example, crimes defining and punishing treason, espionage, terrorism, and drug kingpin activity, which are offenses against the State."

But the end result is that "[a]s it relates to crimes against individuals, though, the death penalty should not be expanded to instances where the victim’s life was not taken", as the Court found it could NOT "... sanction [a death sentence] when the harm to the victim, though grave, cannot be quantified in the same way as death of the victim."

The Courts rationale for this?

The Court discusses the "twin goals of punishment" -- that of retribution and deterrence -- in rationalizing its decision.

According to the Court, "[t]he goal of retribution, which reflects society’s and the
victim’s interests in seeing that the offender is repaid for the hurt he caused does not justify the harshness of the death penalty here", especially when there are problems with "a special risk of wrongful execution" resulting from "unreliable, induced, and even imagined child testimony."

Continuing, the Court stated that "[w]ith respect to deterrence, if the death penalty adds to the risk of non-reporting, that, too, diminishes the penalty’s
objectives. Under reporting is a common problem with respect to child sexual abuse. ... As a result, punishment by death may not result in more deterrence or more effective enforcement. In addition, by in effect making the punishment for child rape and murder equivalent, a State that punishes child rape by death may remove a strong incentive for the rapist not to kill the victim."

Whether or not the Court's reasoning here "intrudes upon the consensus-making process" and risks "itself becom[ing] enmeshed in the process, part judge and part the maker of that which it judges" is a LEGITIMATE question.

And that question is made more relevant by the Court's conclusory observation that "[i]n most cases justice is not better served by terminating the life of the
perpetrator rather than confining him and preserving the possibility that he and the system will find ways to allow him to understand the enormity of his offense," though one MUST admit that the Court tried to redeem itself when it states that it's precedence allows it to conclude that "[d]ifficulties in administering the penalty to ensure against its arbitrary and capricious application require adherence to a rule reserving its use, at this stage of evolving standards and in cases of crimes against individuals, for crimes that take the life of the victim."

Not surprising, the five CONSERVATIVE Justices disagree with the majority.

Justice Samuel Alito, who delivered the dissenting opinion, writes thus:

The Court today holds that the Eighth Amendment categorically prohibits the imposition of the death penalty for the crime of raping a child.
...
The Court provides two reasons for this sweeping conclusion: First, the Court claims to have identified “a national consensus” that the death penalty is never acceptable for the rape of a child; second, the Court concludes, based on its “independent judgment,” that imposing the death penalty for child rape is inconsistent with “ ‘the evolving standards of decency that mark the progress of a maturing society.’ ” Because neither of these justifications is sound, I respectfully dissent.

Editor's conclusion: I can't say that I disagree with the result reached by the majority opinion.

I just CANNOT see the need to kill someone who has NOT killed, in spite of the horror. I am in TOTAL agreement that the rapist deserves to NOT be let out of prison for his natural life, on the strength of my belief that he is a DANGER to little underage girls.

I also belief that the dissent is right when they conclude that the majority's opinion is "unsound" -- though I would characterization the opinion as bordering on the "bogus".