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.

Lithwick is a NEWSWEEK contributing editor and a senior writer for Slate. A version of this column also appears on slate.com.


This should have been done years ago

Where are we heading?

Rapists should be sent on to their eternal reward. It's because we don't that this country is overrun with such scum. These matters are too important to leave to those nine fools in black robes though. Either congress should remove the scotus' power to review such cases or else Louisianna should invoke the power of nullification.

What worries me is, if this passes, what will they come up with next, execution for jaywalking.? You know if you give the government a inch it will take a mile.

madcow wrote:

What worries me is, if this passes, what will they come up with next, execution for jaywalking.? You know if you give the government a inch it will take a mile.

But there uis a difference between laws which are Mallum in se(wrong in and of itself) and those which are Mallum prohibitum(wrong because prohibited). Those laws which forbid acts which are mallum in se need to be vigorously prosecuted. I don't think you have to worry about that too much though, that's not how anarcho-tyranny works;

"It was Sam Francis who coined the phrase anarcho-tyranny, to describe the simultaneous existence of armed dictatorship and the absence of the rule of law. He used it in the context of the crime wave of the early nineties, when armed drug gangs freely roamed American streets even as big government plotted to grab guns from regular Americans and ensnare the bourgeoisie in its regulatory and tax bureaucracy. It is a situation in which government does everything but what it is supposed to do, namely protect life and property."

http://www.lewrockwell.com/rockwell/baghdad.html


"The late conservative intellectual Sam Francis came up with an excellent term for all of this stuff -- "anarcho-tyranny." In brief, he meant a situation in which the truly lawless (violent criminals, big-time crooks) are increasingly treated with kid gloves while at the same time, ordinary schlubs who never commit serious personal or property crimes are increasingly hassled over Pecksniffy technical fouls and "lifestyle violations" such as failing to wear their seat belts.

Invariably, the punishment involves money.

The reasoning and motives are easy enough to understand. Real criminals are potentially dangerous, after all; John Q. driving along unbuckled in his family van almost never is. The first might put up a fight -- and will often try to run. If caught, he certainly has no money in wallet -- so what's in it for the Feds? But John Q. has a job. His wallet, credit cards. He will be fined."

http://www.spectator.org/dsp_article.asp?art_id=10158

one salient point which hasn't been brought up is that this style of government keps the people dependant upon the state and in a condition where they are constantly begging the state to protect them from the criminals the state won't control. ~Jimbob

http://www.tomsbigpicture.com/2006/10/22/anarcho-tyranny-during-katrinia-in-new-orleans/

Anarcho-Tyranny during Katrina in New Orleans
The late conservative writer Sam Francis, who is acknowledged by both Ann Coulter and Pat Buchanan as an influence on their thinking, described life in modern Western democracies as a unique form of government he called “anarcho-tyranny.” The essential characteristic of an anarcho-tyrannic regime is oppression of the productive classes of society with taxes and mickey-mouse regulations, while the unproductive criminal classes of society are given free reign.

In our own area we see the city setting up speed traps on the nice end of town to catch mommy doing 40 on her way to Kroger, while law enforcement does nothing to prevent grandmas from getting carjacked in broad daylight at the mall. There is some logic to such a system, as the submissive, productive classes of society can be milked for easy revenue for speeding tickets, licensing fees and other associated minor harassments of government; whereas to actually attempt to control and contain the criminal element would require government employees to risk life and limb to protect the public, a much less profitable and more dangerous task.

Perhaps the most extreme example of anarcho-tyranny in recent history was the treatment of law-abiding homeowners during Hurricane Katrina. While the criminal population degenerated into savagery at the Superdome, the police were busy confiscating firearms from citizens simply trying the protect their property from the omnipresent looting and killing. If there was anytime in recent history when a homeowner needed a firearm, it was during Katrina. And this was the very time the government took away their arms.

We saw the future of multicultural America when the veil of civic order was lifted- much of the country in urban areas will simply degenerate into savagery once civil authority is removed. Contrast that with the entirely orderly response of rural counties in Mississippi equally affected by Katrina, who helped and aided each other without any police intervention or government effort.

The NRA has a particularly haunting series of videos regarding what happened to law-abiding citizens in New Orleans at this site:

www.givethemback.com/