The United States Supreme Court ruled today in Kennedy v. Louisiana that the death penalty is unconstitutional for crimes that did not result, and were not intended to result, in the victim’s death. The decision struck down a Louisiana law that permitted imposition of the death penalty for rape of a child under age twelve.
The Court reaffirmed that the Eighth Amendment’s Cruel and Unusual Punishment Clause is interpreted according to "the evolving standards of decency that mark the progress of a maturing society,” which are measured by factors including legislative enactments and the frequency with which a punishment is imposed and carried out.
Only six states authorize the death penalty for child rape, no person has been executed for rape (or any other nonhomicide offense) since 1964, and only two people are now on death row in the United States for nonhomicide offenses.
The Court drew a distinction between intentional first-degree murder on the one hand and nonhomicide crimes, even child rape, on the other. Nonhomicide crimes may be devastating in their harm, the Court wrote, but “in terms of moral depravity and of the injury to the person and to the public,” they cannot compare to murder in their “severity and irrevocability."
The Court considered the adverse impact on a child rape victim of having to participate in the years of litigation required to prosecute a capital case and noted that the documented problem of unreliable, induced, and even imagined child testimony creates a “special risk of wrongful execution” in some cases. Further, the evidence suggests that the death penalty does not effectively deter child rape, and may add to the risk of nonreporting the rape for fear that the perpetrator, especially if he or she is a family member, will get the death penalty. Also, providing the same punishment for child rape and murder removes a strong incentive for the rapist not to kill his victim.
Accordingly, the Court concluded that the death penalty is an unconstitutional punishment for the crime of child rape.