Supreme Court mulls death penalty for child rape

The Supreme Court agreed Friday to decide whether a state can execute someone convicted of raping a child, one of the few remaining crimes that does not require the death of the victim to result in capital punishment.

Patrick Kennedy, 43, was sentenced to death in a Louisiana state court for the rape of his 8-year-old stepdaughter. He is the only person on death row in the United States for a rape that was not also accompanied by a killing.

The Supreme Court in 1977 banned executions for rape in cases in which the victim is an adult woman.

The Louisiana state supreme court upheld the sentence: ‘Our state legislature and this court have determined this category of aggravated rapist to be among those deserving of the death penalty, and short of first-degree murder, we can think of no other non-homicide crime more deserving,’ wrote Justice Jeffrey Victory for the state court’s majority.

Chief Justice Pascal Calogero dissented, saying that with the possible exception of espionage and the specifically-defined crime of treason, ‘the Eighth Amendment [to the U.S. Constitution] precludes capital punishment for any offense that does not involve the death of the victim.’

Interesting case, huh? It would make for a very good 1-L con law final exam or a bar exam question — but this is real life, honey, it’s not merely academic fluff.

As for my own viewpoints:

1. On the Constitutional issue I’d vote for the State of Louisiana. When the Bill of Rights was written and adopted state-run executions were common and long-standing practices. There’s simply nothing “cruel and unusual” about executing someone for raping an 8-year-old girl.

2. Re: the obvious Federalism angle I’m a big supporter — and not merely a fair weather supporter like so many members of academia and the chattering classes. I don’t pick and choose the issues for which I prefer state as opposed to federal hegemony. Nor do I cherry pick based upon my own pet peeves or preferences. As stated above I don’t see a Constitutional violation.

If elected representatives in a sovereign state decide to make a law that’s Constitutional and which prescribes the death penalty for rapists of children then that should be their prerogative. If the voters in that state want to remove said representatives and change that law then that’s their prerogative too.

It’s called democracy.

3. Re: the actual litigation in reality as opposed merely to naked commentary, we have to presume we’re looking at a 5-4 decision with Justice Anthony M. Kennedy casting the deciding vote. But time will tell for certain.

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Note: Here’s a link to the AP’s version of events.

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