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Trend It, Don't End ItTracking the inscrutable social consensus on capital punishment for rapists.

By Dahlia Lithwick
Posted Saturday, April 12, 2008, at 7:22 AM ET

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 permitting capital punishment for the rape of young children. Several others are contemplating broadening their laws to do the same. The court must determine, in Kennedy v. Louisiana, whether the Eighth Amendment's prohibition on cruel and unusual punishment bars the execution of someone who didn't commit a murder but did violate a young child.

Kennedy is somewhat confounded by the quiet "moratorium" on executions the United States is experiencing, while the high court mulls another case. That one tests the constitutionality of the lethal injection procedures used in Kentucky and all but one of the 38 states permitting capital punishment. The court will decide the lethal-injection question this spring. But, in the meantime, there's been a pause in capital punishment since last September: a good opportunity to reflect on what life would be like without it and to take the public temperature on the death penalty in general.

Capital punishment in America has been in a slow—repeat, slow—decline for years. According to the Death Penalty Information Center, which compiles statistics on capital punishment nationally, the number of executions has dropped steadily since 1998. Even before the 2007 moratorium took effect, the execution numbers had hit a 10-year low of 53 in 2006. American 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 variously attributed to the reported 127 death-row exonerations now logged by DPIC (though death penalty supporters strongly dispute that statistic), as well as popular books by the likes of John Grisham and pervasive evidence that racism still taints the capital sentencing system. Still, public opinion on the death penalty remains in favor of it—at least for murder. And while the number of states imposing or contemplating moratoriums on the death penalty grows, many seem bent on mending—not ending—the capital system with cleaner execution protocols and higher-quality capital defense.

All of 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 Supreme Court ended the death penalty for mentally retarded offenders in 2002 and again 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 to the wind of American public opinion. For those of us who are not big fans of public hangings on the Pubclicke Square, the notion that standards of unusual cruelty can "evolve" has its appeal. But the new fight over executing child rapists reveals that attempts to measure the shifting winds of public opinion for some ephemeral "national consensus" often says more about which justice is doing the measuring than whatever it is that'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 capital punishment 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." Coker has since stood for the general principle that the death penalty is unavailable for nonmurder crimes, no matter how heinous. But Louisiana contends that child rape is different from adult rape, and its Supreme Court, in upholding the death penalty for Kennedy, 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."

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Dahlia Lithwick is a Slate senior editor.
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Comments from the Fray

…I agree finding a "consensus" is tricky, so we can focus on more concrete matters such as the lesser capacity of those mentally retarded or juveniles or the fact that the proportionality roughly expressed by "an eye for an eye" means that it is dubious to execute when someone did not take a life. So says precedent, and trying to suggest Coker didn't mean to include raping children is a dubious matter.

We can start with that, add another concrete problem raised in reply to an earlier post of mine on this topic -- often children make less reliable witnesses, so you might not have the firmness of proof necessary to "comfortably" execute someone. Also, though this might be more policy related, the death penalty might make it more complicated to prosecute or deal with rapists/protect children.

But, yes, determining "cruel and unusual" also includes some weighing of evolving standards of decency. This would likely be a factor (unspoken or not) in any extent, but it is not the sine qua non one here.

--Joe-JP

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The problem for deterrence is not severity, but certainty. You can put people in prison for 20 years for jaywalking, but as long as the certainty of receiving that punishment is low, jaywalking will continue. Now insert burglary, robbery, etc. Now stop there. Don't insert many violent crimes. Deterrence requires a rational cost-benefit calculation that is missing in many violent crimes. Guess we're out of luck in that department.

--snapper5948

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