Raping Children, Executing Criminals, and Second Guessing the U.S. Supreme Court

When eight-year-old L.H. arrived at the hospital, “a laceration to the left wall of the vagina had separated her cervix from the back of her vagina, causing her rectum to protrude into the vaginal structure. Her entire perineum was torn from the posterior fourchette to the anus,” wrote Associate Justice Anthony Kennedy in [Patrick] Kennedy v. Louisiana, which was argued before the U.S. Supreme Court on April 16 and decided on June 25 of this year. He delivered the opinion of the Court, with which Associate Justices Stephen Breyer, Ruth Bader Ginsburg, David Hackett Souter, and John Paul Stevens concurred without further comment.

A specialist in pediatric forensic medicine at the medical center had testified in the Louisiana trial that “L.H.’s injuries were the most severe he had seen from a sexual assault in his four years of practice.” Kennedy also wrote that “the petitioner’s crime was one that cannot be recounted in these pages in a way sufficient to capture in full the hurt and horror on his victim, or to convey the revulsion society and the jury that represents it, sought to express by sentencing the petitioner to death.”

Both L.H. and her stepfather had initially insisted that a couple of neighborhood boys had brutalized her outside their home; however, after several weeks, she identified him as the culprit. The evidence—mistakenly identifying the bicycle one of the boys supposedly used, the largely undisturbed grass where the rape allegedly occurred, her blood on the underside of her mattress, the stepfather’s telephone message that he could not show up for work that day, another call to a colleague in which he asked about getting blood out of a white carpet because she had “just become a young lady,” an urgent call to a carpet cleaning business, his failure to call 911 in a timely fashion—in the jury’s eyes, pointed in the same direction.

It convicted the stepfather of aggregated rape, and after more deliberations it unanimously sentenced him to death in harmony with a 1995 amended Louisiana law that allowed execution when the victim of this crime is less than twelve years old. The Louisiana Supreme Court upheld these decisions.

He appealed to the nation’s final tribunal. It ruled that the Eighth Amendment to the U.S. Constitution “prohibits the death penalty for this offense. The Louisiana statute is unconstitutional.” Therefore, “the judgment of the Supreme Court of Louisiana upholding the capital sentence is reversed.”

This Eighth Amendment, which was ratified on December 15, 1791, mandates that “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” It does not define “excessive,” “cruel,” and “unusual.”

In 1977, in Coker v. Georgia, the U.S. Supreme Court held that executing a man for raping an adult woman is disproportionate punishment. Since then, many had wondered if this meant that capital punishment for the aggravated rape of a child is also unconstitutional. Kennedy v. Louisiana gave the Court an opportunity to answer this question and it did.

In a way that closely parallels the use of the Wesleyan Quadrilateral, or something like it, when interpreting an Old or New Testament passage, Justice Kennedy, self-consciously took four things into consideration. These were: (1) the Constitution as a whole [Scripture]; (2) precedents established by previous cases [tradition]; (3) his own thinking about the Eight Amendment [reason], and (4) current practices throughout the nation, as exhibited in state laws and various statistics [experience].

Citing the Court’s prior rulings, he repeatedly emphasized that at any given moment the precise meaning of “cruel” and “unusual” must be guided by the “evolving standards of decency that mark the progress of a maturing society.” No one challenged that principle of interpretation.

The Louisiana Supreme Court had held that “[s]hort of first-degree murder, we can think of no other non-homicide crime more deserving of [capital punishment].” Kennedy saw this differently. “We cannot dismiss the years of long anguish that must be endured by the victim of child rape,” he wrote. “It does not follow, though, that capital punishment is a proportionate penalty for the crime.” His more general claim was that “as it relates to crimes against individuals, though, the death penalty should not be expanded to instances where the victim’s life was not taken.”

Associate Justice Samuel Alito roared in protest. “No matter how young the child, no matter how many times the child is raped, no matter how many children the perpetrator rapes, no matter how sadistic the crime, no matter how much physical or psychological trauma is inflicted, and no matter how heinous the perpetrator’s prior criminal record might be,” the Court’s ruling in this case holds, he objected. He delivered a dissenting opinion, with which Justices Antonin Scalia and Clarence Thomas plus Chief Justice John Roberts concurred without further elaboration.

Alito challenged what he took to be the Court’s two main contentions: (1) that it has “identified ‘a national consensus’ that the death penalty is never acceptable for the rape of a child” and (2) “that imposing the death penalty for child rape is inconsistent with ‘the evolving standards of decency that mark the progress of a maturing society.’”

Because Coker v. Georgia had left many state legislatures uncertain about the constitutionality of the death penalty in cases of child rape, it is unsurprising that so few had passed laws permitting it, Alito retorted. What’s more, he implored, “is it really true that every person who is convicted of capital murder and sentenced to death is more morally depraved than every 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.”

I agree with Justice Alito’s protest in a backhanded way. Although I sometimes waver, on most days I believe that we should wholly eliminate capital punishment for all the reasons that we frequently hear, plus one. But if we allow it at all, my view is that we should approve of it when someone is rightly convicted of the aggravated rape of a child.

My additional reason for opposing capital punishment as such is that in some instances it lets the criminal off too easily. This might be one of them.

David Larson teaches in the School of Religion at Loma Linda University.