In a recent edi­to­r­i­al, the Los Angeles Times voiced con­cerns about a Louisiana Supreme Court deci­sion uphold­ing the death sen­tence of Patrick Kennedy for the rape of his 8‑year-old step­daugh­ter. The paper said the Louisiana court’s deci­sion to allow the death penal­ty in such cas­es could lead states to seek the death penal­ty for oth­er non-mur­der crimes, a devel­op­ment that would wors­en an already dys­func­tion­al death penal­ty sys­tem. The edi­to­r­i­al not­ed:

The United States is vir­tu­al­ly alone among advanced democ­ra­cies in per­mit­ting cap­i­tal pun­ish­ment. But wide­spread ambiva­lence about impos­ing the ulti­mate penal­ty has pro­duced a minor indus­try of lit­i­ga­tion that has had the effect of post­pon­ing exe­cu­tions for years and even decades. This state of affairs, which frus­trates sup­port­ers and oppo­nents of cap­i­tal pun­ish­ment, exists even though the death penal­ty has been imposed for more than a gen­er­a­tion only in mur­der cas­es. Now imag­ine how clogged the courts would become if states were allowed to exe­cute indi­vid­u­als for oth­er crimes.

Just that sce­nario has arisen with a deci­sion by the Louisiana Supreme Court. In uphold­ing a death sen­tence for Patrick Kennedy, who raped his 8‑year-old step­daugh­ter and then told her to impli­cate some­one else, the major­i­ty not­ed that the U.S. Supreme Court ​“has char­ac­ter­ized rape as a crime sec­ond only to homi­cide in the harm that it caus­es.” That obser­va­tion actu­al­ly came in a deci­sion that inval­i­dat­ed the death sen­tence of a con­vict­ed rapist. But the Louisiana court held out the hope that the cur­rent U.S. Supreme Court would regard this case dif­fer­ent­ly. Unfortunately, it’s not an idle hope.

In a 1977 rul­ing, only four jus­tices signed an opin­ion say­ing that cap­i­tal pun­ish­ment for rape was always uncon­sti­tu­tion­al. Justice Lewis Powell vot­ed to vacate the sen­tence on the nar­row­er ratio­nale that ​“death is dis­pro­por­tion­ate pun­ish­ment for the crime of rap­ing an adult woman,” leav­ing open the pos­si­bil­i­ty that rape of a child might qual­i­fy as a cap­i­tal crime. A major­i­ty of the cur­rent court might be will­ing to seize on the dis­tinc­tion Powell drew by uphold­ing the death penal­ty for Kennedy. And the jus­tices might be influ­enced by the argu­ment that Louisiana’s law, which cap­i­tal­izes the crime of aggra­vat­ed rape of a child under 12, reflects ​“evolv­ing stan­dards of decen­cy.” As the Louisiana court not­ed, four oth­er states have fol­lowed Louisiana’s lead. Texas will join the list if, as expect­ed, the gov­er­nor signs a bill recent­ly approved by the Legislature.

The rape of a child is an unspeak­able crime. In its deci­sion, the Louisiana court wrote that ​“short of first-degree mur­der, we can think of no oth­er non-homi­cide crime more deserv­ing” of the death penal­ty. But imag­i­na­tive state leg­is­la­tors might eas­i­ly dis­cov­er oth­er offens­es wor­thy of the ulti­mate pun­ish­ment: ter­ror­ism, major drug deal­ing (a cap­i­tal offense under fed­er­al law) or vio­lent hate crimes. Capital pun­ish­ment has proved dys­func­tion­al and divi­sive as a sanc­tion for mur­der. The U.S. Supreme Court should­n’t com­pound the error — and increase its own work­load — by allow­ing states to exe­cute crim­i­nals who do not take a human life.

(Los Angeles Times, June 5, 2007). See Editorials and Death Penalty for Non-Murder Crimes.

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