The Death Penalty, Beyond Eye For An Eye

Legal Analyst Andrew Cohen Asks, Are America's Execution Laws Evolving Or Devolving?

(CBS)  Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.

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If the Supreme Court has made anything clear over the past six years, anything at all, it is that a majority of the Justices are more receptive to restrictions on capital punishment than they are to expansion of it. Over and over again, in cases of both form and substance, the Court has narrowed the ways in which the government may execute its condemned.

First, in 2002, the Court declared that there may be no capital punishment for mentally retarded criminals. Then, a few years ago, the Justices declared there may be no capital punishment for murderers who committed their crimes before they were 18-years-old. Meantime, the Court has repeatedly chastised lower court judges for dubious (read: absurdly narrow) interpretations in capital cases. Oh yeah, and there is in place, at the moment, an effective national stay on executions pending the Court's review of lethal injection procedures.

Into the teeth of this undeniable trend comes a case this week out of Louisiana which asks whether the Constitution permits capital punishment for people convicted of child rape. It presents the Justices with a different sort of dynamic on capital punishment. Instead of being asked to rein in a growing practice - like sentencing juvenile offenders to death - the Court is being asked to re-zone for business an area of death penalty law that has lain dormant for decades.

A handful of states, including Louisiana, have capital child rape statutes on their books despite a 1977 Supreme Court ruling that declared the death penalty a "disproportionate" penalty for rape. Prosecutors in those states, mindful of the 1977 precedent, generally haven't pushed for death sentences in rape cases. No one has been executed for a non capital crime in a generation. Of the thousands of men and women on death row in this country, only two, both in Louisiana, are there for rape.

The case the Justices hear on Wednesday will determine not just whether those two men stay on death row, but whether perhaps hundreds more join them for non-capital crimes. It will help us know whether the recent trend on the Court away from willy-nilly expansion of death penalty scenarios persists for real under the regime of Chief Justice John G. Roberts, Jr. and his fellow Bush II appointee, Justice Samuel A. Alito, Jr. And it will help us know what's likely to come next in the ceaseless war over what to do with our most vicious criminals.

The case floats in the eddy caused by a cross-current of thought over capital punishment in the 21st Century. One current runs through the shrillness of Nancy Grace's voice and is evident in the promulgation of "Megan's Laws" and the rise of the power of victims' rights groups looking to enhance sentencing options for juries in violent-crime cases. The other current runs through Justice Anthony M. Kennedy and, before him, Justice Sandra Day O'Connor, and is evident in the promulgation of DNA testing for death row inmates and the up-tick in resistance by jurors to impose a death sentence absent the most brutal of crime and the clearest of proof.

This whirlwind is known to the Justices as "evolving standards of decency," which is the language contained in an important legal test to which the Court will look in deciding the case. Are America's "evolving standards" taking her toward or away from a standard that would go beyond the Old Testament's "eye-for-an-eye" principle of retribution - to kill when the crime is not murder? Louisiana says so; Its attorneys argue that pending capital rape legislation waiting on deck in state houses around the country is proof that the "evolution" is in their favor.

Moreover, Louisiana argues, the Justices do not necessarily have to upset their 1977 precedent to reach the right result because that old case involved adult rape, while the case of Patrick Kennedy, the present case, involves his horrific rape of his 8-year-old stepdaughter. Even if the Constitution does not permit capital punishment where an adult rapes an adult, the state argues, the sliding scale of "decency" suggests that the rape of a child warrants a death sentence. It's the same argument you hear in the evenings on the cable channels all the time.

It's hard to argue in favor of a child rapist so the other argument in the case focuses more on the value and effect of expanding the death penalty to non-capital crimes. There is more of a risk of faulty convictions, say DNA experts, because children are necessarily the best witnesses to the crime and yet generally aren't as reliable in their testimony as adult witnesses. Child rape would be reported less, other folks say, if the children knew that the perpetrator - often a family member - will be executed for the crime.

And about that "national consensus?" Patrick Kennedy's lawyers point to the 44 states which have chosen not to make rape a capital crime as proof that the nation isn't roiling with frustration to expand the death penalty to include rape cases. Add the shoddy state of Louisiana's ability to pay for decent capital defense attorneys - talk about your national trend - and Kennedy's attorneys say this is the wrong time and the wrong place to put more people on death row.

Speaking of Kennedys, it will be Justice Kennedy who probably casts the fifth vote, one way or the other. And if past is prologue here, the vote will be against capital punishment for child rape, just one more sign that "evolving standards" of decency in America haven't yet evolved backward to a time that most of the rest of Western civilization left long ago.

[ranger1948]

ar_teacher
Your views are absurd. Comparing legal executions with the murders that terrorists do. I hope you are not really a teacher as i wouldn''t want you to be teaching to my children or grandchildren. If your opposed to the death penalty that is fine, but try to argue your point with logic.

[caldwellptr]

I thought the application of the Death Penalty was being expanded to cases other than Murder.

And people wonder WHY we have such a problem with violence in America. Just look at what you people are suggesting that we do to another individual!!

Is what he did despicable? Yes. Does he deserve to be punished? Yes. But consider this. Is it worse punishment to never again see world save for perhaps a small square of sky for one hour a day for the rest of his life, or to simply kill him and put him out of his misery. Executing people really isn''t the worst that can happen to a person. Executions make us no better than the jihadis who kill simply because they don''t agree with your views.

What''s next executions for tax evasion , for speeding... for not towing the party line...

Executions are NOT something that need to be expanded but eliminated.

[ranger1948]

andor3
You sound like a person with some very seriopus mental problems. I hope you get help before you do something irrational..

[andor3]

prisoners are humans and the worst criminal is you and you know it. you want the death penalty because you seek suicide. only a sick society makes murder legal if enough people agree to it.

[andor3]

"America is way too wimpy about the death penalty."

fine, you argue murder is good and just: I am shootin YOU first! Now I do not want any "wimpy" complaining from you or your relatives...

[ranger1948]

john2012
Castration has been done and proven that they will continue to rape, maybe a labotamy would do the trick, but anyone who would rape couldn''t have a brain to begin with.

[hypnotoad72]

MexInvasion - entertaining?! You a frequent audience member (if not guest) of the Jerry Springer show or something?!

[kaviz]

With overcrowding in our prisons, instead of building new ones, we should execute the meanest SOB in it to make room for the next one decided by a panel of citizens living near that prison.

[hbevis]

What about a rapist & killer who wants to be killed or put to death. Is the death penalty letting him off easy ? rather than rotting in jail for life, and facing the daily hell of prison and fellow inmates ?

Posted by JoeCoolSwat at 03:23 PM : Apr 15, 2008

MAYBE THE BEST THING IS TO LET HIM ROT IN PRISON... BUT, IF YOU WERE TO PUT HIM ON DEATH ROW THE LAWYERS WOULD APPEAL IT FOR EVER. SO, GIVE HIM WHAT HE WANTS.. IF HE REALLY WANTS TO DIE THEM ACCOMMODATE HIM.

[joecoolswat]

What about a rapist & killer who wants to be killed or put to death. Is the death penalty letting him off easy ? rather than rotting in jail for life, and facing the daily hell of prison and fellow inmates ?

[hbevis]

Any person that would rape a 8 year old child needs to be purged from society by death. You will never reform such a pervert! Death is too good for them! If the DNA says they did it, then they did it, and they should be put to death!

Posted by commonsence1 at 11:54 AM : Apr 15, 2008

You''''re wrong. You can castrate them--physically or chemically. No need to even try to reform them.

Yes you can castrate them anyway you want to use. But, there has been several cases when men got male hormone shots and went right back to raping. I you are against putting them to death, then castrate them and have most of their *** removed by a doctor. And I would say that would put a stop to their raping..


Posted by jon2012 at 02:08 PM : Apr 15, 2008

[mexinvasion]

America is way too wimpy about the death penalty. Nationally about 100 per day would be a good place to start. All the murderers and rapists. Child abusers. There is all the controversy about overcrowded jails. If we start killing them off, there will be more room. Executions should be more entertaining. Nothing as simple as lethal injection. Lets make it more interesting. Let the criminal make the choice between hanging, a firing squad, or a guillotine. Lets let it be covered on webcams. If criminals want to act like sewagebags, they need to be treated like sewagebags. And no more funeral services of any kind for executed criminals. Grind them up into dog food the way we once did with horses.

[jon2012-2009]

OldThouoght, you''re getting off on this aren''t you?

[jon2012-2009]

Any person that would rape a 8 year old child needs to be purged from society by death. You will never reform such a pervert! Death is too good for them! If the DNA says they did it, then they did it, and they should be put to death!

Posted by commonsence1 at 11:54 AM : Apr 15, 2008

You''re wrong. You can castrate them--physically or chemically. No need to even try to reform them.

[Netterz]

Close your eyes and imagine your own child or loved one in the hands of one of these beasts. NEITHER can be rehabilitated, never ending amounts of $ and studies have been done to prove this. As for what would be considered as "cruel & unusual punishment" in a far better manner of death for these individuals than they gave there victims? They planned,chose,stalked,,then completely destroyed or ended someones life, & the lives of the family & friends. Did they give a RATS A$$, or 2nd thought about the cruel/unusual acts on the victims? To the blood soaked bodies that endured an unimaginable heinous brutal murder, or what a child endured while a grown man buried some part of himself, or an object in the tiny *** of your child tore & them wide open, shredding all innocence along with the ripping of his/her tender soft flesh, listening with sick enjoyment and ecstasy to the screams & terror of what must seem as never ending painful horror of something they will never even begin to understand why they weren''t safe and protected?

[Netterz]

Why is this even STILL BEING debated as something %u201Ccruel & unusual%u201D when this tiny needle, and plenty of drugs to make this monsters exit out of society quickly, easy and quietly, doesn''t even remotely come CLOSE to what %u201Ccruel & unusual%u201D horrors they put there victims through, some for minutes, others hours, days, months, even years at the hands of these devoid of any remorse monsters. The needle is to easy and to polite for these beasts. We as a society have supposedly ''evolved''. I would like some one to explain to me, HOW IN THE H#LL we have arrived at this point in our so called evolution, that we provide more Civil & Personal rights, better health care, free college educations, free legal teams to fight for the freedom of these beasts while they live in spa like prison facilities and the ability make it so incredibly easy for the murderers and child molesters to walk away free and clear, based on some tiny technicality, than Most cases today have plenty of evidence, DNA, witnesses, easy to convict & remove these beasts from our society. But no. They are kept alive for yrs in the system, at the tax payers expense. If it were my child or loved one, and all of the evidence is clear, I would refuse to pay anymore taxes till the creep is DEAD. Not one CENT of my money would go to support this thing..that for ever took away a life, and/or a childs innocence.

[ranger1948]

taddles
The death penalty does not cost more the expense if filing appeakls for up to 20 years is what makes the death penalty more expensive. I happen to know that the executioner in Missouri only getsd $300 for an execution. This should prove he isn''t in it for the money.

[ranger1948]

taddles
The death penalty does not cost more the expense if filing appeakls for up to 20 years is what makes the death penalty more expensive. I happen to know that the executioner in Missouri only getsd $300 for an execution. This should prove he isn''t in it for the money.

[ranger1948]

galogliah
You missed my point entirely. I said if you execute that person the the death penalty isd a deternet because that person is not around to kill again.