WASHINGTON — Supreme Court justices wrestled Wednesday with whether states can execute those who rape children even in cases where the children survive.
The court's leading conservatives lent a sympathetic ear to Louisiana and Texas officials who urged permitting the death penalty for crimes beyond murder. At the same time, justices appeared willing to consider confining capital punishment to certain particularly egregious cases.
The court's ruling will decide whether Louisiana can execute convicted rapist Patrick Kennedy, who's on death row for raping his 8-year-old stepdaughter. More broadly, the case called Kennedy v. Louisiana eventually will guide local politicians keen on protecting children.
"We're seeing predators that seek out young children and do abominable things to them," Texas Attorney General Ted Cruz told the court, "and that's why legislatures are acting."
In a 1977 decision out of Georgia, the Supreme Court struck down the death penalty for a man who'd been convicted of raping a 16-year-old girl. She was deemed an adult. The question now is whether this precedent extends to cases involving the rape of a child.
Texas and Louisiana are among five states that permit child rapists to be executed. Missouri and other states have been debating adopting similar punishments, and law-and-order advocates contend that there's a growing push toward expanding the death penalty.
"The trend ... has been more and more states are passing statutes imposing the death penalty in situations that do not result in death," Chief Justice John G. Roberts. said.
This could prove to be the key to the latest case.
Kennedy's attorneys argue that the death penalty violates the Eighth Amendment's ban on "cruel and unusual punishment," because it's disproportionately harsh for a nonfatal crime. In assessing punishments, justices typically try to map society's "evolving standards of decency."
In recent years, for instance, the court has cited laws passed by states and even other countries in striking down the death penalty for juveniles.
On Wednesday, Roberts and Justice Antonin Scalia said that standards were moving in the direction of tougher punishment for those who harmed children.
"It's the trend that counts," Scalia said.
Kennedy's attorneys, and death penalty skeptics more generally, counter that there can be no general consensus when only two men have been sentenced to death for child rape in the past 13 years. The other condemned inmate, imprisoned with Kennedy at Angola State Prison in Louisiana, was convicted of raping a 5-year-old girl.
No one has been executed solely for the crime of rape in the United States in the past 43 years, Kennedy's attorney Jeffrey Fisher, a Stanford Law School professor, told the court.
"Louisiana's capital rape law is particularly at odds with national values because Louisiana is the only state in which (Kennedy), a nonrecidivist, could be subject to the death penalty," Fisher added.
Louisiana's current law, modified since Kennedy's conviction, allows the death penalty for the rape of a child younger than 13. Montana, South Carolina, Oklahoma and Texas set stricter standards, requiring to one degree or another that the convicted rapist have a prior record of sexual assault.
"We have to recognize that with child rape, there is something very unique and horrible about the crime," Juliet Clark, an assistant district attorney in Louisiana, told the court.
Clark hammered home the gruesome specifics with a prosecutor's zeal, jumping into her argument with explicit descriptions of the injuries that Kennedy's victim suffered.
Nonetheless, justices hinted Wednesday that further restricting the death penalty — to recidivists or particularly egregious offenses — could be one intermediate solution. A decision in the case is expected by the end of June.