Supreme Court rejects death for child rape

WASHINGTON — The death penalty is unconstitutional as a punishment for the rape of a child, a sharply divided Supreme Court ruled Wednesday.

The court overturned death-penalty laws in Louisiana and five other states. The only two men in the country who have been sentenced to death for the crime of child rape, both in Louisiana, will receive new sentences of life without parole.

The 5-to-4 decision continued the move by a slim majority of the court to narrow the circumstances under which capital punishment is allowed, even when society views the crime with "revulsion."

"There is a distinction between intentional first-degree murder on the one hand and nonhomicide crimes against individual persons, even including child rape, on the other," Justice Anthony Kennedy wrote in the majority opinion.

While the latter may be "devastating in their harm," Kennedy said, "they cannot be compared to murder in their severity and irrevocability." He was joined by the court's more liberal members: John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer.

The decision was the third in six years to place a categorical limitation on capital punishment. In 2002, the court barred the execution of mentally disabled defendants. In 2005, it ruled that the Constitution bars the death penalty for crimes committed before the age of 18.

No one has been executed for rape in the United States since 1964. Though capital punishment can be imposed for crimes against the state such as treason, espionage and terrorism, of the 3,300 inmates on death rows across the country, only two face execution for a crime other than murder. Both were convicted under the Louisiana law in question, which authorized the death penalty for anyone who rapes a child under the age of 12.

Nevertheless, the decision prompted outrage from the conservative wing of the court and angry Louisianans and condemnation from both of the presumptive candidates for president.

"The opinion reads more like an out-of-control legislative debate than a constitutional analysis," said Louisiana Gov. Bobby Jindal, a Republican. "One thing is clear: The five members of the court who issued the opinion do not share the same 'standards of decency' as the people of Louisiana."

Justice Samuel Alito questioned the majority's logic that every murderer sentenced to death is more "morally depraved" than anyone who rapes a child.

"I have little doubt that, in the eyes of ordinary Americans, the very worst child-rapists — predators who seek out and inflict serious physical and emotional injury on defenseless young children — are the epitome of moral depravity," he wrote.

Alito was joined by Chief Justice John Roberts and Justices Antonin Scalia and Clarence Thomas.

The decision resonated in the presidential campaign, too.

"That there is a judge anywhere in America who does not believe that the rape of a child represents the most heinous of crimes, which is deserving of the most serious of punishments, is profoundly disturbing," said Sen. John McCain, R-Ariz.

Sen. Barack Obama, D-Ill., said he was disturbed by the court's "blanket prohibition."

"I think that the rape of a small child, 6 or 8 years old, is a heinous crime, and if a state makes a decision that under narrow, limited, well-defined circumstances, the death penalty is at least potentially applicable, that does not violate our Constitution," he said.

The decision overturned the death penalty for Patrick Kennedy, 43, who was convicted of raping his 8-year-old stepdaughter in Louisiana in 1998 — after which the girl required surgery.

It was a crime, Kennedy wrote, "that cannot be recounted in these pages in a way sufficient to capture in full the hurt and horror inflicted on his victim." But that does not mean it should be answered by society with death, he wrote.

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

Forty-four states prohibit the death penalty for any kind of rape, and five states besides Louisiana have allowed it for child-rapists — Georgia, Montana, Oklahoma, South Carolina and Texas.

Information from The Associated Press is included in this report.