On April 16, the Supreme Court heard arguments in Kennedy v. Louisiana, a case challenging a Louisiana law making child rapists eligible for the death penalty, even when the crime did not also involve a homicide.  Only five other states have similar laws. 

Patrick Kennedy, the defendant in Kennedy v. Louisiana, was sentenced to death for raping his eight-year old step daughter.  Child rapists deserve society’s harshest punishment, short of the death penalty, for their abhorrent crimes. Murderers permanently end the lives of their victims; child rapists also devastate the lives of their victims, but they do not take life and their victims have the hope of recovering to live a normal life.

Child rape is an utterly deplorable crime, but the death penalty is not appropriate for this – or any - non-homicidal crime.  

First, where would we draw the line? What kinds of crimes are so egregious that, even if a homicide has not occurred, they should be punishable by death? The list is potentially endless. Allowing the death penalty to be imposed for non-homicidal crimes will likely dramatically increase the number of people subject to the death penalty, will fuel the vague and arbitrary manner in which capital punishment is currently imposed, and runs counter to the sensible consensus in the legal community that the death penalty should be reserved for only those criminals who are the worst of the worst.  Applying the death penalty to someone who has not taken a life is cruel and unusual and thus violates the 8th Amendment. 

Second, aside from the constitutional issues, there are convincing policy reasons to oppose the death penalty in these kinds of cases. Child advocates note that children – and especially those who have been traumatized – are easily influenced by their elders. The risk that these children will be confused and even mistaken about what happened is high, and thus so is the risk of a wrongful conviction. In fact, the victim in the Kennedy case first identified someone else as the perpetrator. It was only after adult intervention that she changed her story and accused her stepfather.   Mr. Kennedy has consistently maintained that he is innocent.

Third, these same child advocates worry that the death penalty for this kind of crime will make it even less likely that the victims will report the assault to the authorities. This is because so many of the perpetrators are family members and close friends. Experience shows that it is already difficult for these children to accuse those who are close to them. Potentially sending them to their deaths would, these child advocates agree, dramatically decrease the likelihood that children would report these crimes in the first place.

The United States has not executed anyone for non-homicidal rape since 1964. In 1977, the Supreme Court ruled that the use of capital punishment for adult rape was unconstitutional. That ruling, in Coker v. Georgia, dealt with the rape of a 16 year-old woman, who the Court considered an adult, apparently because she was married. While the Court’s decision did not specifically mention child rape, it has been widely considered to bar the death penalty in rape cases where a homicide did not occur. Justice Byron White, writing the Court’s decision, stated, “[T]he death penalty, which ‘is unique in its severity and irrevocability,’ is an excessive penalty for the rapist who, as such, does not take human life.”  

The Supreme Court should look to the ruling in Coker as it considers the Kennedy case. Even though the facts of the case now before the Court are tragic, they should not change the reasons why the Court ruled the way it did in Coker. The death penalty is still unique in its severity and irrevocability, and is excessive for anyone who does not take human life.

In recent years the Supreme Court has narrowed capital punishment’s reach in other ways, finding, for example, that the death penalty is cruel and unusual for certain groups of defendants. In 2002, in Atkins v. Virginia, the Court ruled the execution of a person with mental retardation is unconstitutional, and in 2005, in Roper v. Simmons, the Court ruled it was unconstitutional to execute juveniles who were under the age of 18 when they committed their crimes. The Supreme Court had it right in those decisions, and in Coker. To deviate from the decision in Coker and uphold the Louisiana law at issue in Kennedy would be a giant step in the wrong direction. The Court should stay the course and allow capital punishment to be imposed only for the “worst of the worst.”