For the third time in six years, the Supreme Court on Wednesday placed a category of defendants outside the reach of the death penalty, this time ruling that execution is unconstitutional for those whose crimes did not result in the death of the victim.
By a 5-4 vote, the Court reversed the death penalty for Patrick Kennedy, a Louisiana man sentenced for raping and seriously injuring, but not killing, his 8-year-old stepdaughter. He would have been the first person executed for non-homicide child rape since 1964.
The decision in Kennedy v. Louisiana came on the next to last day of the term and did not fit this term's pattern of generally greater unanimity in decision-making among the justices.
The Court struck down the death penalty for raping an adult in the 1977 case Coker v. Georgia, but until Wednesday it had not closed the door completely on executing those convicted of other non-homicide crimes against individuals.
Though instances of child rape can be "devastating in their harm, as here," Justice Anthony Kennedy wrote for the majority, "they cannot be compared to murder in their severity and irrevocability."
Kennedy also wrote, "When the law punishes by death, it risks its own sudden descent into brutality, transgressing the constitutional commitment to decency and restraint."
Citing "evolving standards of decency and the teachings of our precedents," Kennedy concluded that executing the Louisiana defendant would violate the Eighth Amendment's bar against cruel or unusual punishment. The death penalty, he wrote, should be reserved "in cases of crime against individuals, for crimes that take the life of the victim."
Kennedy said his category of "crimes against individuals" does not include cases of treason, espionage, or drug kingpin activity, which he defined as crimes against the state that could still be punished by death.
But the ruling was another incremental victory for death penalty opponents who have succeeded in persuading the high court to carve out other exceptions to capital punishment such as the mentally retarded in 2002 and juveniles in 2005.
"They're not about to end the death penalty," said Richard Dieter of the Death Penalty Information Center, which opposes capital punishment. "But there is a strong consensus that it should be very narrowly used."
Kennedy's opinion cited "independent judgment" as well as a range of empirical data to demonstrate a solid national consensus against executing child rapists -- including the fact that only six states have laws allowing it, much lower than the number of states that allowed execution of the mentally retarded and juveniles.
The difficulty of prosecuting child rape cases, with the possibility of coerced or imagined testimony, was also a factor, as well as the fact that if Louisiana's law was upheld, as many as 5,000 defendants -- convicted child rapists -- would be exposed to the death penalty each year.
Justice Samuel Alito Jr. wrote a dissent that was joined by Chief Justice John Roberts Jr. and Justices Antonin Scalia and Clarence Thomas.
Alito argued that Kennedy's assertion of a national consensus against executing rapists was flawed by the fact that the 1977 Coker decision on adult rapists "stunted legislative consideration" of bills that would have allowed execution of child rapists. "The Court has provided no coherent explanation for today's decision," Alito wrote.
Editor's Note: For more on this topic, see Obama Disagrees With High Court on Child Rape Case