Writing for the majority, Justice Anthony Kennedy posited that the death penalty "is not a proportional punishment for the rape of a child."
If the victim does not die or death was not intended, capital punishment for that crime violates the Eighth Amendment, the Court ruled in an opinion by Justice Anthony M. Kennedy. The case was Patrick Kennedy v. Louisiana (07-343). The broad declaration that death sentences should be reserved “for crimes that take the life of the victim” will apply, the Court said, to crimes against individuals — thus leaving intact, for example, a possible death sentence for treason.
Part of the Court’s rationale for nullifying a death sentence for raping a child was that the child victim gets enlisted, perhaps repeatedly, to recount the crime, forcing on the child “a moral choice” that the youngster is not mature enough to make. “The way the death penalty here involves the child victim in its enforcement can compromise a decent legal system,” Justice Kennedy wrote.
It has been 44 years since the death penalty was applied in the United States for a crime that did not cause the death of the victim. That execution took place in Missouri in May of 1964, when Ronald Wolfe was executed for the crime of forcible rape. In 1977 the Supreme Court struck down the death penalty for the crime of rape when the victim was an adult woman.
Forty-five states already barred the application of capital punishment for the crime of rape, and five others allowed for a death sentence if the offender had a prior conviction for child rape.
The Louisiana case revolved around Patrick Kennedy, who was convicted of raping his then-eight-year-old stepdaughter and sentenced to death for that crime. Writing for the minority, Justice Samuel Alito maintained that "[T]he harm that is caused to the victims and to society at large by the worst child rapists is grave," Alito wrote. "It is the judgment of the Louisiana lawmakers and those in an increasing number of other states that these harms justify the death penalty."
But Kennedy said the absence of any executions for rape and the small number of states that allow it demonstrate "there is a national consensus against capital punishment for the crime of child rape."The decision leaves intact the option of executing individuals convicted of crimes against the nation. Convictions for treason and espionage can still carry the death penalty - even if we do fail to apply it where it is sorely needed, as in the case of Aldrich Ames and Jonathan Pollard - both of whom should still be hung in the public square.
Kennedy also acknowledged that the decision had to come to terms with "the years of long anguish that must be endured by the victim of child rape."
Still, Kennedy concluded that in cases of crimes against individuals _ as opposed to treason, for example _ "the death penalty should not be expanded to instances where the victim's life was not taken."