Sparing child rapists the death penality was the right decision

On June 25, 2008, the U.S. Supreme Court outlawed the execution of people convicted of raping a child, by ruling that capital punishment it is not ‘a proportional punishment’.

In a 5-4 vote, the court said the Louisiana law allowing the death penalty to be imposed in such cases violates the U.S. Constitution's ban on cruel and unusual punishment.

Justice Anthony Kennedy wrote the majority opinion and his four liberal colleagues joined him, while the four more conservative justices dissented. What the majority of the court was saying was that the sentence is too severe for raping a child. I don’t intend to get into that aspect of the court’s decision in this blog.

The Supreme Court banned executions for rape in 1977 in cases in which the victims are an adult women but it didn’t ban executions when the victims are children. This is why Patrick Kennedy, 43, was sentenced to death for the rape of his 8-year-old stepdaughter in Louisiana. He was one of two people in the United States, both in Louisiana, who had been condemned to death for a rape that was not also accompanied by the killing of his victim.

Forty-five U.S. states ban the death penalty for any kind of rape, while five states allowed it for child rapists. Montana, Oklahoma, South Carolina and Texas allowed executions in such cases if the defendant had previously been convicted of raping a child.

Proponents of the Louisiana law said the popular trend was toward the death penalty, a point mentioned by Justice Samuel Alito in his dissent in which he said in part;

"The harm that is caused to the victims and to society at large by the worst child rapists is grave, It is the judgment of the Louisiana lawmakers and those in an increasing number of other states that these harms justify the death penalty."

Angry Louisianans who backed the law said the majority members of the Supreme Court were out of touch.

It is my contention that the court was not out of touch. I am not saying that child rape is not a terrible crime. It is and those who rape children should go to prison for a very long time. As to executing them, I am not looking at the morality of it. I am instead looking at it from a common sense point of view. The court in my respectful opinion made the right decision but for the wrong reason.

Many years ago, in many of the states in the U.S., anyone who was found guilty of kidnapping, even when the victim was set free, would automatically be sentenced to death. Then brighter minds in the Supreme Court realized that if kidnapping was automatically a capital offence even when the victim was set free, the kidnapper would lose absolutely nothing if he killed his victim so that the victim wouldn’t testify against him. Subsequently, kidnappers who didn’t murder their victims were spared the death penalty. There has not been an execution in the United States for a crime that did not also involve the death of the victim in the past 44 years. Many kidnapping victims survived the ordeal because of that change in the law.

Does it not follow that a child rapist who sets his victim free does so because he knows that even if the victim testifies against him in court, he will not be sentenced to death. Now there will be exceptions of course but child rape victims have a greater expectation of living beyond the ordeal now that child rapists will not be executed.