Lithwick: The Supreme Penalty for Rape

This week, the U.S. Supreme Court will hear a case about whether—for the first time in decades—a criminal can be executed for a crime that isn't murder. Patrick Kennedy was convicted in 2004 for the rape of a child, his 8-year-old stepdaughter, and the state of Louisiana contends that his crime is tantamount to murder and worthy of death. Nobody in this country has actually been executed for anything other than murder since 1964, although five states, including Louisiana, have laws on their books permitting capital punishment for the rape of young children. Several others are considering broadening their laws to do the same. So the court must determine, in Kennedy v. Louisiana, whether the Eighth Amendment's prohibition of cruel and unusual punishment bars the execution of someone who didn't commit a murder, but did violate a young child.

Capital punishment in America has been in a slow decline for years, with "slow" being the key word. According to the Death Penalty Information Center, which compiles national statistics on capital punishment, the number of executions has dropped steadily since 1998, hitting a 10-year low of 53 in 2006. Confidence in the death penalty has also dipped slightly: a Gallup poll taken in 2006 showed that while two thirds of Americans endorsed capital punishment for murderers, given the choice between the death penalty and a life sentence without parole, slightly more preferred life in prison, for the first time in decades. This dip has been attributed to a number of factors: the reported 127 death-row exonerations now logged by the DPIC, books by the likes of John Grisham and pervasive evidence that racism still taints the capital-sentencing system. Still, public opinion remains in favor of the death penalty, at least for murder.

All the statistics, polls and trends I've just cited would be utterly irrelevant to any legal discussion of whether a child rapist can be executed were it not for the odd constitutional test that weighs "cruel and unusual" punishment against "evolving standards of decency." This is an exercise in molar-grinding frustration for members of the Supreme Court devoted to adhering to the Constitution's original text. When the court ended the death penalty for mentally disabled offenders in 2002 and for those who were minors at the time of their crimes in 2005, it did so via an elaborate interpretive dance that required putting one finger on the pulse of foreign courts and the other into the wind of U.S. public opinion. If you're not a fan of public hangings, the notion that standards of cruelty can "evolve" has its appeal. But the new fight over child rapists suggests that attempts to measure the shifting winds of public opinion often reveal more about who's doing the measuring than about what's being measured.

The Supreme Court tackled the death penalty with regard to the rape of a 16-year-old in 1977 in Coker v. Georgia, and prohibited execution for the rape of an "adult." The majority found that "the death penalty, which is unique in its severity, is an excessive penalty for the rapist who, as such, does not take human life." But Louisiana contends that child rape is different from adult rape, and its Supreme Court, in upholding Kennedy's execution, wrote that "if the court is going to exercise its independent judgment to validate the death penalty for any non-homicide crime, it is going to be child rape."

Kennedy's lawyers measure national discomfort with executing child rapists by counting to two: the number of people on death row for nonhomicide offenses. They also count to zero: the number of criminals executed for rape since 1964. For its part, the state of Louisiana argues in its brief that public sentiment is tilting its way: "outrage" over the sexual violation of children is rising, and the enactment of "Megan's Laws" reflects a punitive new approach to child rapists. "The rape of a child under twelve is a crime like no other," the Louisiana brief notes, because it results in devastating implications that last a lifetime. Louisiana also points out that state legislatures are trending toward making certain nonhomicide offenses a capital crime, with 38 percent of death-penalty states now punishing such crimes with the death penalty. This all puts the high court in the unenviable position of having to measure whether the widespread public support for the death penalty is somehow canceled out by the slight decline in that support, which must in turn be weighed against efforts in some states to execute a broader range of defendants. Depending on how you look at it, we are witnessing either a burgeoning new trend for executing rapists—or the last gasps of capital punishment.

The problem with measuring "evolving standards of decency" is that they tend to evolve and devolve in numerous directions at the same time. Kennedy's lawyers are right about the broad U.S. distaste for executing nonmurderers. But Louisiana is also right that the trend is shifting toward extending the types of crimes eligible for the death penalty. Americans generally support capital punishment but still worry that it's being applied unfairly. They want the option of capital punishment, but seemingly wish to exercise it only a few dozen times per year. For the high court, it's a towering challenge: distilling all these trends and countertrends into some broad constitutional rule—for a public that increasingly seems to like the idea of capital punishment more than the reality of it.