WASHINGTON — A closely divided Supreme Court on Wednesday prohibited states from executing those who rape children but don't kill their victims, retaining limits on the death penalty that have been in place for more than 30 years.
In a 5-4 decision, the court concluded that Louisiana had violated the Eighth Amendment in making the rape of a child younger than 12 a capital offense. The ruling blocks other states that have been considering similar punishment.
"There is a social consensus against the death penalty for child rape," Justice Anthony Kennedy wrote for the majority, adding that "the death penalty is not a proportional punishment for the crime."
Kennedy's reasoning largely followed an influential 2005 court opinion he also authored prohibiting the execution of juveniles, as well as a 2002 opinion prohibiting the execution of the mentally retarded. The court's underlying notion is that "evolving standards of decency" can restrict practices that once were widespread.
"Decency, in its essence, presumes respect for the individual and thus moderation or restraint in the application of capital punishment," Kennedy wrote.
Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer joined Kennedy. The majority stressed that their ruling didn't necessarily undercut use of the death penalty in other nonfatal crimes, including treason or espionage.
"The court makes clear that Louisiana's experiment with the death penalty for rape ran afoul of the United States Constitution," declared Ben Cohen of the Capital Appeals Project, which, along with Stanford Law School professor Jeffrey Fisher, has represented convicted Louisiana rapist Patrick Kennedy.
The court's newest justice, Samuel Alito, wrote in dissent that "the court has provided no coherent explanation" for the death-penalty limits. He was joined by Chief Justice John G. Roberts and Justices Antonin Scalia and Clarence Thomas.
"I have little doubt that, in the eyes of ordinary Americans, the very worst child rapists ... are the epitome of moral depravity," Alito wrote.
Patrick Kennedy is one of only two men in the United States who are on death row solely for the crime of rape. The other child rapist facing execution, Richard Davis, also is in Louisiana.
Kennedy, as his attorneys point out in legal filings, has an IQ measured at 70, "which resides in the mentally retarded range." Now in his mid-40s, Kennedy dropped out of school after the eighth grade. He had a prior criminal record for writing false checks.
In 2003, a Louisiana jury found him guilty of raping his 8-year-old stepdaughter. When police found her, she was wearing only a T-shirt and was wrapped in a bloody blanket. A pediatric forensic-medicine specialist reported her injuries were "the most severe he had seen from a sexual assault in his four years of practice."
The stepdaughter, identified only as "L.H." in court proceedings, originally had attributed the 1998 rape to a neighborhood boy. About a month later, she changed her story and accused Kennedy.
Without questioning Kennedy's conviction, the court's majority on Wednesday cited the courtroom dangers posed by reliance on child witnesses.
"The problem of unreliable, induced and even imagined child testimony means there is a special risk of wrongful execution in some child rape cases," Kennedy cautioned.
The last time an American was executed for rape was in 1964. In a 1977 case involving the rape of a married 16-year-old girl, the Supreme Court ruled that the death penalty for a crime that didn't involving death violated the Eighth Amendment, which prohibits "cruel and unusual punishment."
Led by Louisiana, some states subsequently identified a potential loophole in the 1977 case and began allowing the death penalty for the rape of younger children.
Five other states besides Louisiana permit the death penalty for child rape, including Georgia, South Carolina and Texas. Unlike Louisiana, these other states limit the death penalty to cases in which the rapist has a prior record of sexual violence.
"The fact that only six states have made child rape a capital offense is not an indication of a trend," Kennedy wrote.
Unlike his controversial 2005 opinion involving the execution of juveniles, Kennedy didn't explicitly rely on the practices of foreign governments. Still, Alito and the court's other conservatives argued that states should have been allowed to impose new death penalties if they chose to.
Florida still has a child-rape death penalty on its books, although the state's Supreme Court struck it down in 1991. Legislatures in other states, including Missouri and Mississippi, recently have been considering their own child-rape death penalties.
"I am extremely disappointed in the court's decision not to allow the most serious punishment, both as a matter of justice and deterrence to protect our children from vile sexual predators," Missouri Gov. Matt Blunt said.
ON THE WEB
A PDF of the opinion in Kennedy v. Louisiana.
McClatchy Newspapers 2008