In recent decades, the Supreme Court has looked for ways to limit the death penalty, but the court is hearing arguments in a case that could reverse that trend - and extend capital punishment to additional crimes.
The court should stand by its past rulings that murder is the only crime committed by one person against another that can be punished by death. The current case involves a horrific crime. Patrick Kennedy was found guilty of raping his 8-year-old stepdaughter and was given a death sentence. There appear to be questions about the strength of the case against Mr. Kennedy, but his lawyer’s objection to the sentence, and the issue before the Supreme Court, is that executing him would be unconstitutional. (A decision on the case is expected in June.)
Since it reinstated capital punishment, the court has held that the Eighth Amendment’s bar on cruel and unusual punishment prohibits applying it to some defendants, such as the mentally retarded, and to certain crimes. In a 1977 case involving the rape of an adult, Coker v. Georgia, the court said “the death penalty, which is unique in its severity and irrevocability, is an excessive penalty for the rapist who, as such, does not take human life.
Since then, the court has repeatedly interpreted Coker as holding that the death penalty cannot be applied in cases of person-on-person violence other than murder or reckless disregard for life.
Louisiana thought it saw an opening in Coker, however, in cases of child rape, which the decision did not expressly mention. The state passed a law making rape of a victim younger than 12 punishable by death.
We believe capital punishment is always wrong and unconstitutional, but there are specific reasons not to affirm Mr. Kennedy’s sentence. The court would be overturning its own well-settled precedents. It would also be rejecting a nearly national consensus. Louisiana is one of just a handful of states that punish child rape with death, and the only one that does so for first-time criminals. No other Western nations do that, and the few countries that do - including Saudi Arabia and Egypt - are not ones to emulate.
If the court allows the death penalty for child rape, it would be opening the door for the same punishment to be extended to other crimes. That would be wrong, particularly now, when the growing number of cases of innocent people being freed from death row is turning popular opinion against capital punishment. The court should reverse Mr. Kennedy’s unconstitutional sentence.