Posted by Eugene Volokh:
Supreme Court Agrees to Consider Constitutionality of Death Penalty for Child
Rape:
http://volokh.com/archives/archive_2007_12_30-2008_01_05.shtml#1199487328
[1]Last May, I wrote:
Yesterday, the [2]Louisiana Supreme Court upheld the death penalty
for rape of a child under 12. In [3]Coker v. Georgia (1977), the
Supreme Court held that the death penalty for rape was
unconstitutional. Many commentators had interpreted the reasoning
of Coker as precluding the death penalty for anything short of
murder and possibly some national security offenses (treason,
espionage, and the like). But Coker spoke expressly and repeatedly
of rape of an adult, so the question of the death penalty for rape
of a child remains open.
Yesterday's decision follows the lead of a 1996 Louisiana Supreme
Court case (State v. Wilson), but Wilson decided the question in
the context of a pretrial motion, and the U.S. Supreme Court
understandably -- given its general preference not to review
decisions before a final judgment -- refused to hear the case. The
new case, State v. Kennedy, upholds a death sentence, so I suspect
the Supreme Court will agree to consider the issue.
The Louisiana opinion is long and detailed, and I can't do it
justice with a capsule summary; but here's a particularly
interesting passage that tries to apply the U.S. Supreme Court's
death penalty methodology that was developed in the recent cases
having to do with the death penalty for juveniles and the mentally
retarded (one paragraph break added):
Overall, it appears that approximately 30% of capital jurisdictions
(15 of 38, including federal) authorize some form of non-homicide
capital punishment, a showing strong enough to suggest that there
may be no consensus one way or the other on whether death is an
appropriate punishment for any crime which does not result in the
death of the victim. However, when the direction of change is
considered, clearly the direction is towards the imposition of
capital punishment for non-homicide crimes. As stated earlier, the
number of jurisdictions allowing the death penalty for non-homicide
crimes more than doubled between 1993 and 1997.
Most important to our analysis is the fact that four states have
enacted laws which capitalize child rape since Wilson, evidencing
movement in the direction that this Court thought possible back in
1996 when Wilson was decided. Looked at another way, even after the
Supreme Court decided in Coker that the death penalty for rape of
an adult woman was unconstitutional, five states nevertheless have
capitalized child rape since then, a number which the Supreme Court
held in Roper was sufficient to indicate a new consensus regarding
society�s standards of decency towards the juvenile death penalty.
In fact, the trend is more compelling than in Roper, given the
Roper Court�s reliance on five states abolishing the death penalty
for juveniles after Stanford held that the death penalty for
juveniles was constitutional. Here, we have five states enacting
the death penalty for child rape in spite of Coker, which held that
the death penalty for rape of an adult was unconstitutional.
Furthermore, it is likely that the ambiguity over whether Coker
applies to all rape or just adult rape has left other states unsure
of whether the death penalty for child rape is constitutional.
These states may just be taking a �wait and see� attitude until the
Supreme Court rules on the precise issue. Thus, the fact that only
five states capitalize child rape should not pose an obstacle to
the Court�s consideration of the issue, given the direction of
change, i.e, an increase of five since Coker....
[Moreover,] it can be said for child rapists as a class of
offenders that, unlike the young or mentally retarded, they share
no common characteristic tending to mitigate the moral culpability
of their crimes. Contrary to the mentally retarded and juvenile
offenders, execution of child rapists will serve the goals of
deterrence and retribution just as well as execution of
first-degree murderers would. Our state legislature, and this
Court, have determined this category of aggravated rapist to be
among those deserving of the death penalty, and, short of a
first-degree murderer, we can think of no other non-homicide crime
more deserving.
My suspicion proved accurate: The U.S. Supreme Court has just
[4]agreed to hear the case.
References
1. http://volokh.com/posts/1179944391.shtml
2. http://www.lasc.org/opinions/2007/05KA1981.opn.pdf
3.
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=433&invol=584
4.
http://www.scotusblog.com/wp/uncategorized/court-to-rule-on-death-penalty-for-child-rape/
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