Wednesday, June 25, 2008

Death Penalty for Raping Child Unconstitutional

"When the law punishes by death, it risks its own sudden descent into brutality, transgressing the constitutional commitment to decency and restraint."

The Supreme Court of the United States has held in Kennedy v. Louisiana, by a 5-4 vote, that the state violated the Eighth Amendment's ban on cruel and unusual punishments by prescribing the death penalty for rape of a child under the age of 12, where the perpetrator did not kill the child and did not intend to kill the child. Justice Kennedy (no relation to the convicted) wrote the majority opinion, joined by Justices Stevens, Souter, Breyer, and Ginsburg. Justice Alito dissented, joined by Chief Justice Roberts and Justices Scalia and Thomas. Despite the recognized brutality of the crime against the child victim, Justice Kennedy's opinion for the Court insisted on the Constitution's commitment to respecting the dignity of all individuals. "As it related to crimes against individuals," he wrote, "the death penalty should not be expanded to instances where the victim's life was not taken." (Note though the interesting conflict between the Court's framing of its principles -- is the death penalty unconstitutional whenever "life [i]s not taken," or could it be imposed if the perpetrator intended to take life even if the crime did not result in the victim's death? This could become a point of future litigation about the reach of the Eighth Amendment.)

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