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Supreme Court Rejects Death Penalty

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THE PROGRESSIVE REVIEW - June 26, 2008
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Supreme Court Rejects Death Penalty for Child Rape
by: David Stout
The New York Times

Washington - The Supreme Court ruled, 5 to 4, on Wednesday 
that sentencing someone to death for raping a child is 
unconstitutional, assuming that the victim is not killed. 

"The death penalty is not a proportional punishment for the 
rape of a child," Justice Anthony M. Kennedy wrote for the 
court. He was joined by Justices John Paul Stevens, David 
H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer. 

The dissenters were Chief Justice John G. Roberts Jr. and 
Justices Antonin Scalia, Clarence Thomas and Samuel A. 
Alito Jr., generally regarded as the conservative wing of 
the tribunal. 

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Not since 1964 has anyone been executed in the United 
States for a crime other than murder, and of about 3,300 
inmates now on death row, only two are facing execution 
for an offense that did not involve a killing - and both 
of those inmates are in Louisiana. Patrick Kennedy, was 
sentenced to death for the rape of his 8-year-old step-
daughter and the other is Richard Davis, who was condemned 
for assaulting a 5-year-old girl. 

The case of Kennedy v. Louisiana, No. 07-343, was the 
latest in a series in which the justices have weighed 
particular applications of capital punishment. In 2002, 
for instance, the Supreme Court barred the execution of 
mentally retarded defendants, and in 2005 it banned the 
execution of people for crimes they committed before 
they were 18. 

But, as Chief Justice Roberts observed when Kennedy v. 
Louisiana was argued on April 16: "This is quite different. 
It is focused on the nature of the offense." Indeed, a 
theme that ran through the argument was that, while the 
death penalty is a punishment like no other, the rape of 
a child is a crime like no other. 

In 1977, the Supreme Court banned death sentences for rape. 
But the victim in that case, Coker v. Georgia, was a young 
married woman, and the ruling did not specifically discuss 
the rape of a child. Over the past 13 years, several states 
have reacted to public outrage over crimes against children 
by amending their statutes to make the rape of a child 
punishable by death. 

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Louisiana was the first state to do so, amending its death-
penalty law in 1995 to include rape of a child under the 
age of 12. But unlike Louisiana, the other states with 
similar provisions (Georgia, Montana, Oklahoma, South 
Carolina and Texas) generally limit the death penalty to 
defendants previously convicted of sex crimes against 
children. 

Mr. Kennedy's lawyer, Jeffrey L. Fisher, argued before the 
justices that it was "at odds with national values" for the 
state to execute his client, who had never committed such 
a crime before. 

But Justice Scalia pressed Mr. Fisher on that assertion, 
noting that the recent trend has been "more and more states 
permitting the capital punishment" for the rape of a child. 

As for the case at hand, Juliet L. Clark, an assistant 
district attorney from Gretna, La., countered that Mr. 
Kennedy, who weighs 300 pounds, had committed "a very 
savage rape" that caused serious injuries to his victim. 
And R. Ted Cruz, the Solicitor General for the State of 
Texas, who argued as a "friend of the court" on the side 
of Louisiana, said that Mr. Kennedy (like Mr. Davis, the 
other child-rape defendant on Louisiana's death row) had 
"committed crimes that are just unspeakable." 

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Responding to a question from Justice Ginsburg, Ms. Clark 
said the Louisiana child-rape law could apply regardless 
of the sex of the criminal or that of the victim. 

And in support of her argument that crimes against children 
have long been viewed with special revulsion, and as 
deserving of special punishment, Ms. Clark pointed out 
that the Supreme Court ruled in 1990 that states can make 
it a crime to possess child pornography even in one's home. 

That ruling, in Osborne v. Ohio, carved out an exception to 
a 1969 Supreme Court ruling that the Constitution protects 
the possession of obscene material in the privacy of one's 
residence. Justice Byron R. White wrote for the 6-to-3 
majority in the Osborne case, reasoning that Ohio was 
justified in trying to "destroy a market for the 
exploitative use of children." 

Of the current Supreme Court, only Justices Scalia, Kennedy 
and Stevens took part in the 1990 Osborne decision. Justices
Scalia and Kennedy were in the majority; Justice Stevens 
joined with Justices William J. Brennan Jr. and Thurgood 
Marshall in finding the Ohio law to be unconstitutionally 
broad. 

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