Basically Law

Read the decision, here.

Issue.  Does the 8th Amendment protection against cruel and unusual punishment prevent the execution of an individual convicted of rape of a child when that child did not die or there was no intent to kill the child?

Background.  The criminal defendant, Kennedy, was convicted of the violent rape of his 8 year old step-daughter.  (There is no reason to go through the horrible details of the crime here - but they are pretty horrific and are detailed in the decision.)  In Louisiana, the rape of a child is a capital offense.  During the sentencing phase, evidence was introduced that Kennedy had raped another child, but no charges were brought in that matter.  Kennedy was sentences to death and appealed that decision based on the 8th Amendment prohibition against cruel and unusual punishment.  The Louisiana courts upheld the sentence.  The Supreme Court granted cert and overruled.

Court's Analysis.  The Eighth Amendment prohibition against cruel and unusual punishment includes excessive punishment for a particular crime.  In a previous Court decision, Coker, the Supreme Court found that death was an excessive punishment for the crime of raping an adult.  The Court, however, left open the question as to whether death is an excessive punishment for the rape of a child. 

Under Eight Amendment jurisprudence, to determine whether a punishment is excessive, the Court will examine "the evolving standards of decency that mark a progress of a maturing society."  In making that determination, the Court will examine how many jurisdictions punish a particular crime with death, what direction are the jurisdictions going in punishing a particular crime and an analysis of the case law to determine whether the punishment is excessive.

The Supreme Court noted that only six states made child rape a capital offense.  Louisiana argued that many states have not made it a capital offense based on a misunderstanding of the Supreme Court's decision in Coker (capital punishment for adult rape violated the Eighth Amendment).  The Supreme Court dismissed that argument.  The Supreme Court also dismissed Louisiana's argument that more and more states are willing to make child rape a capital offense as evidenced by proposals in five states.  The Supreme Court would not consider pending legislation as evidence that more states are making a particular crime a capital offense; and, in fact, proposals in two of those states had failed.  Finally, the Supreme Court noted that no one had been executed for child rape in over 40 years.

The Supreme Court continued that the number of states that make a particular crime a capital offense is not dispositive as to whether there is an Eighth Amendment violation.  The Court examined its own case law and found that a death sentence for a crime committed against an individual that did not result in that individual's death is excessive to the crime.  (The Court did not address capital crimes against the State that did not result in death such as treason or being a drug king-pin.)  Even though rape is a horrible crime, the victim at least can recover somewhat.  Further, if a child rapist can get a sentence of death then there is a perverse incentive to kill the child since the punishment would be the same. 

For the forgoing reasons, a sentence of death for child rape is excessive and a violation of the Eighth Amendment.

My Analysis.  Even though I disapprove of the death penalty, I do believe the punishment is constitutional.  Further, I am not entirely sold on this evolving standards of decency argument.  If some states want to punish a crime more harshly than others, let them.  The Court should come up with some sort of objective standard of when a penalty of death is excessive to the crime committed without having to examine what the national consensus claims.  Oddly enough, the Court did set such a standard in this case - a penalty of death is excessive in any case where the crime is committed against an individual who was not killed during the commission of the crime.

While I like that there is a standard, I am not entirely sold that it has constitutional merit.  Or better yet, I don't like the standard.  Punishment of death serves two main purposes:  retribution and deterrence.  Sex offenders have the highest rate of recidivism and people really cannot control committing themselves from committing sex crimes (the compulsion is just too great) so I don't think any punishment would deter others from committing a crime.  It all comes down to retribution and maybe the appropriate punishment for a person who rapes a child is death.  Let that be left to the people of the State.  Some cases are just too heinous not to execute the assailant.