Not justice

Even as a punishment for murder, the death penalty in this country is administered so inconsistently and after such prolonged delays that it amounts to cruel and unusual punishment. Today, the state of Louisiana will ask the U.S. Supreme Court to compound the injustice by allowing it to execute rapists as well as murderers. The court should decline the invitation.

It has been 44 years since anyone in the United States has been executed for rape. In 1977, the Supreme Court seemed to rule out future such executions when it overturned the death sentence of a Georgia rapist. “Rape is without doubt deserving of serious punishment,” Justice Byron R. White wrote in the main opinion, “but in terms of moral depravity and of the injury to the person and to the public, it does not compare with murder, which does involve the unjustified taking of human life.”

The victim in the 1977 Georgia case was a young adult. Today, Louisiana will ask the justices to come to a different conclusion when the victim is a child. It is asking the court to uphold the death sentence of Patrick Kennedy, who was convicted in 2003 of raping his 8-year-old stepdaughter. In its brief, the state argues that death “is not cruel and unusual punishment for the rape of a child” and thus doesn’t violate the 8th Amendment.

Leave aside the question of whether state-sanctioned killing can ever be morally justified (a question this page would answer in the negative). The legal issue before the Supreme Court is whether punishing child rape with death is cruel and unusual, based on evolving standards of decency. The court must also consider whether abandoning the principle of “a life for a life” will invite miscarriages of justice.

On all counts, the court should reject Louisiana’s argument. In a 2005 case, the court surveyed the states and concluded that they were moving away from executing juveniles, a finding it used to bolster a ruling rejecting that practice. A similar analysis today argues against executing those who rape children; just six states, including Louisiana, allow the death sentence for child rape. Finally, as Kennedy’s lawyers point out, in cases based on a child’s testimony about sexual abuse, “the risk of wrongful conviction is especially pronounced.”

As a punishment for murder, the death penalty is dysfunctional and divisive. Expanding its application to other heinous crimes -- child rape, torture, acts of racial violence -- might be politically popular, but it would make an unjust and unworkable system even worse. The Supreme Court should hold the line.