Grim justice

In concluding that capital punishment can be imposed constitutionally only for the crime of deliberate murder, the Supreme Court wisely has prevented a further expansion of a penalty that is already imposed freakishly and in a discriminatory way. The country, and the court, should be focusing on ending the death penalty, not devising new opportunities to render it.

In a 5-4 decision, the court on Wednesday overturned the death sentence of a Louisiana man convicted of the aggravated rape of his 8-year-old stepdaughter. The crime committed by Patrick Kennedy was bestial, but it has been 44 years since anyone was executed for a rape in which the victim wasn’t killed.

And for good reason: In 1977, the Supreme Court overturned a death sentence with a ruling that seemed to end the practice of executing rapists. “Rape is without doubt deserving of serious punishment,” Justice Byron R. White wrote, “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 reason the Louisiana case even came to the current court was that only four justices in the 1977 ruling thought that capital punishment was constitutional in murder cases but always unconstitutional in rape cases. A fifth, Justice Lewis Powell, offered the narrower rationale that “death is disproportionate punishment for the crime of raping an adult woman,” suggesting that child rapists might still be constitutionally sentenced to death. Seizing on that implication, Louisiana and five other states passed laws allowing for the execution of child rapists.

Surprisingly, the majority in this week’s ruling accepted the notion that the 1977 decision didn’t apply to the rape of a child. This was key, Kennedy said, because it showed that the states were free after 1977 to make child rape a capital offense -- yet only a few did so. That was evidence, Kennedy said, that the practice violated “evolving standards of decency,” the yardstick the court uses to decide whether a punishment is cruel and unusual. On this point, the dissenters have the better argument. Writing for himself and three other justices, Justice Samuel A. Alito suggested that so few states acted because the 1977 ruling dissuaded legislators from acting for fear the court would overrule them.

One reason Wednesday’s decision is so welcome is that, had it gone the other way, some states would have rushed to follow Louisiana by making child rape -- and perhaps other nonfatal assaults -- subject to the death penalty. Whatever the lapses in Kennedy’s logic, the court’s decision rightly forecloses that grim possibility and contains the reach of this abhorrent punishment.