Washington The Supreme Court Wednesday ruled that it is unconstitutional to execute someone who rapes a child, issuing a broad decision that reserves the death penalty for murderers and those who commit crimes against the state.
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 what will be a term-defining decision for the court.
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.
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 condemnation from both of the presumptive candidates for president.
Justice Samuel Alito questioned the majority's logic that every murderer sentenced to death is more "morally depraved" than any child-rapist.
"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 G. Roberts Jr. and Justices Antonin Scalia and Clarence Thomas.
The decision overturned the death penalty for Patrick Kennedy, 43, who was convicted of raping his 8-year-old stepdaughter in Louisiana in 1998 - an assault so brutal that the girl required surgery.
It was a crime, Justice 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.