High Court Weighs Death For Child Rapists

Case Could Determine Whether Death Penalty Extends To Crimes Beyond Murder

(AP)  A seemingly divided Supreme Court struggled Wednesday over whether the rape of children should be punishable by execution, a case that could determine whether the death penalty is extended to crimes other than murder.

Arguments involving a Louisiana man's rape of his 8-year-old stepdaughter took place the same day the fractured court upheld lethal injection in the execution of condemned prisoners.

The case of Patrick Kennedy of Harvey, La., outside New Orleans represents a shift in the ongoing debate over the death penalty. In recent years, the Supreme Court has narrowed capital punishment, overturning it for murderers who are juveniles or are mentally retarded.

Chief Justice John Roberts and Justice Antonin Scalia made clear that it's time to consider that evolving standards appear to be heading in a new direction, at least on the subject of child rape.

Justice Stephen Breyer appeared cautious about a change.

"I'm not a moralist. I'm a judge," said Breyer. "As a judge, I look at the law. It seems for 43 years, no one has been executed but for murder."

Besides Louisiana, four other states allow executions of someone convicted of child rape. The other states - Montana, Oklahoma, South Carolina and Texas - have not applied the death penalty to child rapists. Missouri, led by Gov. Matt Blunt, is considering a similar law.

Kennedy's lawyer, Jeffrey L. Fisher, told the court the death penalty for child rape under Louisiana law can be applied too easily and that not enough states have enacted the death penalty for child rape to justify the Supreme Court's support for it.

The court's past cases require the presence of aggravating facts that make a person committing a particularly heinous crime eligible for the death penalty, said Fisher.

"How would you describe a particularly heinous rape of a child under 12?" asked Scalia. "What would make it particularly heinous?"

When the defendant has engaged in previous criminal activity or when the rape took place while the defendant was committing other crimes, Fisher replied.

Fisher said that a long-standing national consensus exists against capital punishment for rape, prompting disagreement from Roberts.

The trend since 1995 has been that more and more states are passing laws imposing the death penalty, said the chief justice, pointing to the states that have followed Louisiana.

You have to ask yourself the question whether that is enough, Fisher replied.

Roberts questioned how a consensus can develop among the states if the court steps in at the outset and says a death penalty for child rape is unconstitutional.

"If you knock them down one by one, it is kind of hard to get a trend going," said Roberts.

Justice Samuel Alito asked whether the worst case of child rape that can be envisioned is still less heinous than any murder that qualified for the death penalty.

Fisher urged the justices not to take the step Louisiana is urging, saying that "once you roll the line back ... it becomes extraordinarily difficult" to figure out what crimes that do not involve the victim's death qualify for the death penalty.

Justice Anthony Kennedy pointed out that treason carries the death penalty.

On the other side of the argument from Fisher, Louisiana prosecutor Juliet Clark and Texas Solicitor General R. Ted Cruz focused on what Kennedy did.

The 43-year-old convict who raped his stepdaughter at their home in 1998 is "exquisitely culpable" and he has committed a crime that is "just unspeakable," Cruz told the court.

Clark detailed the injuries of Kennedy's stepdaughter, which required surgery, arguing that a crime of such savagery warrants Kennedy's execution.

Were those injuries permanent? asked Justice John Paul Stevens.

They were not, but such cases involve psychological injuries as well, Clark said.

In the lethal injection ruling the court issued just before the Louisiana case, Stevens said for the first time that he now believes the death penalty is unconstitutional.

[ranger1948]

I hope the justices realize that the constitution was written to uphold the laws that are best for the majority of the population. If the majority wants this as a law then they should approve it and serve the people as they were appointed to do.

[element51]

Although I am somewhat conflicted about capital punishment I do believe that child rape is and should be included in death penalty cases. I still do not know if capital punishment is really a deterent I know that some things people do make them unfit to ever be allowed in mainstream society again. From a cost point of view life imprisonment is cheaper for the tax payer but then there is always a chance that the offender can some how be released. But anyone who rapes a child deserves to be punished to the fullest extent of the law. I guess this is why I don''t have a seat on the Supreme Court.

[brianbwb-2009]

"I hope the justices realize that the constitution was written to uphold the laws that are best for the majority of the population. If the majority wants this as a law then they should approve it and serve the people as they were appointed to do." Posted by ranger1948

Again, ranger, I must respectfully disagree, the constitution also has measures in it that were designed to prevent "the tyranny of the majority".

It is clear for example, that at least until relatively recently, the majority of Americans supported racial apartheid, but since the constitution allows for avenues of redress for the victims of apartheid, now American thought is slowly shifting to the view that apartheid is wrong, and the constitution does allow for that shift, but also protects America from a shift too far to the other pole, so the now "White" minority is protected from their own former transgressions.

[brianbwb-2009]

To Ranger1948

I should have said "White" male minority. Excuse the typo.

[brianbwb-2009]

Posted by Element51

There will always be cases where people who were actually innocent of the crimes charged against them were nonetheless convicted, the reasons this happens are for another topic thread, but as long as such a possibility exists, then the concept of capital punishment is unconstitutional, as it does violate human rights in an irrevocable manner.

[swwils]

Everyone of these sick SOB''s should die.I don''t understand why they even need to decide this one,this is a no brain-er.They convict them then they should get one appeal,if that falls trough then execute them the same *** week that their appeal fell out.This taken 10 years and even longer to execute someone is rediculous,some even take longer than that.

[differnet]

As a rape victim and a childhood sexual abuse victim, I personally stand against extending the death penalty to this type of case. I do believe in life imprisonment without the possibility for parole. The child''s long-term well-being may need to have some type of closer or confrontation with the victimizer.

Survivors of rape don''t need the added guilt of a death on their minds as they age - especially in the case of a relative. What they need is to know that they are suvivors and while their lives have been changed forever, they have not been ruined.

[azcagirl]

"How would you describe a particularly heinous rape of a child under 12?" asked Scalia. "What would make it particularly heinous?"
Is this guy f*cking serious? What part makes this heinous? The entire act does.

[guadalcanal3]

I would like to see all child rapists die...but the problem is if the pervert knows that they are going to get the death sentence if the child talks then it would actually be a death sentence for the child...They should be locked up forever and thrown into the general ''inmate'' population and let the chips fall where they may.(after being castrated)

[ranger1948]

brianbwb
I again have to disagree with yiou. I think the white minority is now held accountabl more than ever.

[ranger1948]

different
I am for the death penalty for child molestors. However after reading your opinion i have to ask, how many victims agree with you ? I do respect your point of view and you sound like you are a survivor. I hope all has turned out well for you.

[solothinker]

"Justice Samuel Alito asked whether the worst case of child rape that can be envisioned is still less heinous than any murder that qualified for the death penalty."
I never want to imagine that scenario in my my life, but I will tell you that I can definitely envision the death penalty for anyone who crosses that uncrossable line.

[tomanyt]

The death penalty should be reserved for murders only.

[britleah]

These sick people should definently get the death penalty!!! I read that he raped her in her bed and caused extensive internal injury. That is so disgusting!!!!!!! I also think that lethal injection is just way too nice for these monsters. Plus, a shotgun shell is a hell of a lot cheaper then what they are doing now. . .