Supreme Court Hears Case on Death as Penalty for Child Rape

By Jeralyn, Section Supreme Court
Posted on Wed Apr 16, 2008 at 07:33:00 AM EST
Tags: death penalty (all tags)

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Kennedy v. Louisiana, an important and closely followed case is being argued today in the Supreme Court: Can the death penalty be imposed as a punishment for child rape, if the child isn't murdered.

Colorado is considering such a law and I outlined the reasons against it here. I agree with this law review article (pdf)that:

First, there is a strong national consensus against imposing the death penalty for child rape. In addition, the death penalty is a disproportionate punishment for the crime of rape, regardless of the age of the victim, because it does not cause death. Moreover, imposing the death penalty for child rape would fail to serve, and would likely inhibit, the retribution and deterrence functions of the U.S. penal system.

The Sex Crimes blog has a full resource page devoted to the Kennedy case. Also check out Dahlia Lathwick in Newsweek, The Supreme Penalty for Rape.

The Scotus Wiki page for the case with briefs and synopsis and other links is here.

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Supreme Court Hears Case on Death as Penalty for Child Rape | 23 comments (23 topical)

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Interesting (none / 0) (#1)
by LoisInCo on Wed Apr 16, 2008 at 02:17:30 AM EST

I went and looked at your article and it brought up points I had not considered. (Mainly family members would not report their child being raped by another family member if there were a death penalty). Certainly something to think about (How DARE you make me think, don't you know there are primaries going on?!).

: I can't think of a single reason (none / 0) (#2)
by Fabian on Wed Apr 16, 2008 at 02:41:47 AM EST

to be in favor of it.
I think Bill O'Reilly would love it though. It's material for dozens of shows.

Is it a good idea vs. is it Constitutional? (none / 0) (#3)
by daryl herbert on Wed Apr 16, 2008 at 03:26:52 AM EST

Whether it's a good idea, and whether it's Constitutional, are two different questions. HOW different--that's a question of how you interpret the Constitution. How important are common sense and results? No one wants to say they practice "results-oriented jurisprudence," but no one will say they don't care at all about results, either.

The main (but unspoken) reason the Supreme Court struck down the death penalty for rape cases was that it was being used as a weapon to oppress blacks. Phony rape claims could be trumped up against black men and then they could be effectively lynched by the state government for sleeping with a white woman. White men weren't being executed for rape; blacks were. That's how it worked in the South, and SCOTUS put a stop to it, to its credit.

But I don't think those fears apply to child rape cases. Those fears speak directly to the question of fairness to the defendant, whereas fears that allowing the DP will result in less reporting of child rape cases are more general, murky fears grounded in public policy, which the Court generally prefers not to resolve.

Also, SCOTUS severely underestimated the harm caused by rape. The majority opinion in Coker described the 16-year-old rape victim as "unharmed" because she didn't suffer any injuries other than the rape. We've come a long way since then. Recognizing rape as a seriously horrible crime (on par with torture) makes the death penalty more justifiable. Add on top of that the greater harm to child rape victims than to adult victims, and the DP looks more plausible.

Really, I think the Court could go either way on this one. I guess it depends whether Justice Kennedy is feeling the urge to cite more European precedent, or whether his friendship with Justice Alito is pulling him back to the right.

If rape, why not child abuse? (5.00 / 1) (#4)
by Fabian on Wed Apr 16, 2008 at 05:02:39 AM EST

Rape is just another way of victimizing a child. There are probably kids who are every bit as damaged and traumatized by constant verbal and mental abuse.

I'm all for protecting children, but I don't think the death penalty will achieve that goal.


: As a mother (none / 0) (#6)
by Militarytracy on Wed Apr 16, 2008 at 09:16:14 AM EST

I couldn't have said this better myself.

NPR reported on this story this AM. (none / 0) (#15)
by sarcastic unnamed one on Wed Apr 16, 2008 at 12:07:54 PM EST

The main (but unspoken) reason the Supreme Court struck down the death penalty for rape cases was that it was being used as a weapon to oppress blacks. [...] But I don't think those fears apply to child rape cases.

fwiw, according to NPR this AM, 9 out of every 10 adults convicted of raping a child are AA, and every adult ever executed in the US for raping a child has been AA. That said, I have no way of sourcing NPR's claims nor validating or refuting their claims.


That's not what they said (none / 0) (#16)
by txpublicdefender on Wed Apr 16, 2008 at 01:48:29 PM EST

Those are not the statistics cited in Nina Totenberg's NPR report. She said that, under the new laws in a few states that now allow it, 9 out of 10 who have been sentenced to death are AA, and that no person has ever been sentenced to death (or, it may have been actually executed--I can't remember) for raping an AA child.

The point is that the racial underpinnings of the death penalty in this context still apply today.


: Well, both of our memories were somewhat off. (none / 0) (#18)
by sarcastic unnamed one on Wed Apr 16, 2008 at 02:01:23 PM EST

From NPR's transcript:
Death penalty opponents see this case as a test of where the new court is heading.
"This case is a throwback," says Washington and Lee University professor David Bruck. "The death penalty for rape was one of the most disturbing and troubling aspects of this nation's entire experience until the Supreme Court called a halt, we thought, in 1977."
Disturbing and troubling, he says, because it was almost exclusively imposed on African Americans.
Indeed, from 1930 to 1972, basically the last years when the death penalty was imposed for rape, nine out of 10 men executed for rape were black. Moreover, it appears that no white man has ever been executed in the U.S. for the non-homicide rape of a black woman or child.

interesting ad at the top of that (none / 0) (#5)
by cpinva on Wed Apr 16, 2008 at 07:10:32 AM EST

page jeralyn.

if you're going to cite the bible, at least get it right, ghandi did. it was a warning, not a prescription for justice.

something i note wasn't mentioned: the possibility of increased danger to the police; a suspect might be less inclined to surrender peacefully, knowing the death penalty is hanging over their head.

historically (in the US), the death penalty has been reserved for crimes resulting in death, with few exceptions. it's proven no deterrant, but (i suppose) it's made society feel better.

unfortunately, it's also been invoked erratically, making expanding the range of crimes applicable of questionable merit. how many more false identifications do we need, to show the system's dysfunctional?

child rape is a horrific crime, LWOP seems to be a reasonable punishment.

: by this reasoning, (none / 0) (#19)
by diogenes on Wed Apr 16, 2008 at 03:43:07 PM EST

By your reasoning, a death penalty for killing cops will make people more likely to surrender if being chased for other, noncapital crimes rather than taking a chance on killing a cop to escape.

A crime easy to exploit... (none / 0) (#7)
by Dadler on Wed Apr 16, 2008 at 09:43:13 AM EST

...since most of us would kill with our bare hands a person that had raped our child. But the DP is not going to make anything better or safer, only more inhumane and less just. Which, of course, we do not need.

Lethal Injections upheld (none / 0) (#8)
by Stellaaa on Wed Apr 16, 2008 at 09:50:20 AM EST

7-2 Supreme court decision.

I was saddened (none / 0) (#9)
by facta non verba on Wed Apr 16, 2008 at 10:00:31 AM EST

by that when I read it in today's NYT. Being foreign-born, there is much that I do not comprehend about the US, the lack of a universal national health care programme and the strong affinity for the death penalty rank first and foremost.

''We ... agree that petitioners have not carried their burden of showing that the risk of pain from maladministration of a concededly humane lethal injection protocol, and the failure to adopt untried and untested alternatives, constitute cruel and unusual punishment,'' Chief Justice John Roberts said in an opinion that garnered only three votes.

But four other justices did not sufficiently object and voted for the outcome. Justices Ginsberg and Souter were the sole dissenters.

The argument against the three-drug protocol is that if the initial anesthetic does not take hold, the other two drugs can cause excruciating pain. One of those drugs, a paralytic, would render the prisoner unable to express his discomfort. What then is the standard of cruel and unusual? For me, it has always been would I want this done to me. Frankly the guillotine while more gruesome seems quicker.


: Lethal injection (none / 0) (#11)
by gyrfalcon on Wed Apr 16, 2008 at 10:23:06 AM EST

was developed, I think, as a way to make everybody else feel more comfortable about executions, not the person being executed. I'm with Phil Donahue on this: If we the people are going to put people to death, it should be totally public so we can all see what's being done in our name. I agree with you that the guillotine is the best method of swift, sure and "humane" killing.

Not surprising unfortunately (none / 0) (#14)
by fuzzyone on Wed Apr 16, 2008 at 10:49:23 AM EST

The sliver of good news is that there is no single majority opinion and the plurality along with Stevens's concurrence and the dissent leave room for more litigation in a case with a better developed record. That's not to say I hold out much hope for a different result from this court.

Stevens, as is so often the case, gets to the heart of the matter:

It is unseemly--to say the least--that Kentucky may well kill petitioners using a
drug that it would not permit to be used on their pets.

I have not gotten through all 97 pages but the always excelent SCOTUS Blog has more


the facts of this case (none / 0) (#10)
by txpublicdefender on Wed Apr 16, 2008 at 10:09:56 AM EST

Reading the facts of the Kennedy case at least makes me feel better about the opponents of the death penalty picking a good case to take to the court. It should be very troubling for the court to uphold a case on these facts--where the victim claimed for years that it was not the defendant, in fact asserting on videotape that she knew they wanted her to say it was her stepfather (the defendant) when it wasn't him, and then only implicated the defendant when she was threatened with being put in foster care if she didn't say it was him. Jesus. It has all the horrible problems one associates with suggestible and incredible (except to outraged juries) child witnesses. Kennedy would seem a poster child for why the death penalty should NOT be allowed in these types of cases.

To play devil's advocate (none / 0) (#12)
by cmugirl on Wed Apr 16, 2008 at 10:26:21 AM EST

I am a fence sitter on the DP in general. The reactive, vengeful part of me says "Fry the bast**d, but the saner side of me says if it's wrong to kill, then it should be wrong for the state to kill.

Having said that, I think the argument made here about the proportionality of the punishment fitting the crime is a weak one in this case. If that's the argument, then clearly it would be ok to punish a child rapist (or any rapist, for that matter) by raping them. It would be proportional, and to some, it would be just - if a rapist could feel the terror and pain and suffering a sexual assault, not to mention the degradation and lifelong scars, then that would be proportional.

Just food for thought - not necessarily my personal opinion, but the argument has to go both ways.

I'm opposed to the death penalty (none / 0) (#13)
by gyrfalcon on Wed Apr 16, 2008 at 10:28:13 AM EST

in all cases, but I'm a bit less bothered by it for child rape than for murder. There are lots of reasons why people can end up killing, and most of them are one-time events unlikely to be repeated. A proved child rapist has almost certainly done it before and will absolutely do it again and needs to be permanently removed from society.

We need a rock-solid, no mercy life without parole for these awful cases if there's irrefutable DNA evidence. If there isn't DNA, the door has to be left open at least a little bit.

that's bologna (none / 0) (#17)
by txpublicdefender on Wed Apr 16, 2008 at 01:54:32 PM EST

It is a ridiculous statement to say that a proven child rapist has done it before and will absolutely do it again. That is not supported by research. For what its worth, I have represented a number of boys, aged 13-14, who have been charged with, and convicted of, rape of a child (involving children who were anywhere from 5-9 years old). Should they be locked up forever with no chance of getting out?


: Obviously not (none / 0) (#20)
by gyrfalcon on Wed Apr 16, 2008 at 04:11:26 PM EST

I'm talking about fully adult men who are sexually fixated on pre-pubescent children as sexual objects. I should have been clearer about that. My apologies.
I completely agree that consensual sex between adolescents shouldn't be criminalized, and I'm totally opposed to any of this crap of prosecuting those under age as adults (for any reason).
That said, I hope you agree that 13-14 year old boys who seriously experiment with sex on children as young as 5-9 need some pretty serious psychological treatment and monitoring because it is not normal. I'd be surprised, in fact, if those boys hadn't been molested themselves by an adult at some point. Obviously, I don't know the facts of your cases, and I know that sometimes extremely unfair accusations get made and genuinely innocent kid stuff can get blown up into major crimes in some circumstances.
But we have had some experience with similar stuff in my extended family, and the effects of it on the child who is subjected to it can be non-trivial, so I take it seriously.

death penalty or life in prison (none / 0) (#21)
by proudmom on Wed Apr 16, 2008 at 04:36:09 PM EST

makes no difference to me but they deserve one of them. My 17 yr. old daughter was raped in Feb. of this year and we go to court in May. That boy has molested several girls in my daughters school and I know that for a fact because they told me he molested them but they never told their parents because the boys sister is their friend. This is my daughter that that pervert touched and violated and yes I think a rapist deserves the death penalty. The hell his lawyer is going to put my girl through is sickening and she is going to have to be strong. But her coming forward when no other girl would is the right thing and I'm so very proud of her. And we are finding out that the law does not work for the victim but the criminal has all the rights. It's not fair. I say put them to death or put them away forever. A man that gets his kicks from forcing sex on a girl will never be rehabilitated. And I know that people say it is not the sex that makes a rapest rape, it is control. No, IT IS THE SEX!!!! If it was your daughter no matter what her age how would you feel?

Another reason against the DP (none / 0) (#23)
by Lora on Wed Apr 16, 2008 at 06:18:05 PM EST

If the punishment for raping a child is as severe or more severe than for murder, what's to stop the rapist from killing the child afterwards?

: What a joke (none / 0) (#25)
by diogenes on Wed Apr 16, 2008 at 07:31:17 PM EST

It's a joke to see people talk about life without parole to counter the death penalty when the same types also talk about how the US puts too many people in prison for too many years compared to other countries when individuals are considered. When someone's been in prison for twenty years then we hear calls that they've reformed, or the victims are dead or have hazy memories, or there are calls for retrials, or there were "coerced confessions". Of course, the enlightened Europeans don't have life without parole, we're told, even for the guilty, so after the fact people get out early.