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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

(Continued from page 1)

Kennedy's lawyers measure the 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 a rape since 1964. For its part, the state of Louisiana argues in its brief that public sentiment is tilting its way: "[S]ocietal awareness" and "outrage" over the sexual violation of children is rising, and the enactment of "Megan's laws" reflects a punitive new approach to child rapists. Louisiana also points out that "the rape of a child under twelve is a crime like no other," and that the physical and psychological effects of child rape are devastating. It also engages in some counting, i.e., the number of state legislatures trending toward making certain nonhomicide offenses a capital crime: Thirty-eight percent of death penalty states now punish some nonhomicide crimes with the death penalty.

International jurists and social scientists have also weighed in. A friend-of-the-court brief on behalf of Kennedy from British law scholars and former law lords includes citations to the Moroccan and Nigerian penal codes—a tactic guaranteed to send several justices into near-irreversible clinical despair. Another brief, from the National Association of Social Workers, warns that if child rape becomes a capital crime, victims will be less likely to report abuse, and rapists more likely to kill them. Several other states write in support of Louisiana, urging the court not to meddle with the independent state legislatures. Which leaves the high court in the unenviable position of having to measure whether the generalized public support for capital punishment may be canceled out by the slight recent decline in that support, which must in turn be weighed against efforts in some states to execute a broader range of criminals. All of which should somehow be tested against whatever the foreign courts might think.

Depending on how you look at it, and at which level of generality you elect to start counting, 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 multiple directions at the same time. Patrick Kennedy's lawyers are right about the broad American distaste for executing nonmurderers. Louisiana is also right that the trend is shifting toward expanding the types of crimes eligible for capital punishment. Americans generally support the death penalty but still worry it's applied unfairly and now seem to increasingly favor life without parole. They still want the option of capital punishment but apparently wish to exercise it a few dozen times per year only. For the high court, it's a monumental challenge: distilling all of these trends and counter-trends into some broad, workable constitutional rule, a rule that somehow reflects the emerging "national consensus" that we may like the idea of capital punishment far more than the reality of it.

A version of this piece appears in this week's Newsweek.

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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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