High court rules out death for child rape

• By GERARD SHIELDS AND BILL LODGE
• Advocate staff writers
• Published: Jun 26, 2008 - Page: 1A - UPDATED: 12:05 a.m.

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WASHINGTON — The U.S. Supreme Court on Wednesday struck down as unconstitutional a Louisiana law that allowed rapists of children to be put to death.

In a 5-4 decision, the panel concluded the death penalty should be strictly reserved for murderers. The ruling was immediately hailed by death penalty opponents fearing an expansion of capital punishment while supporters of the law framed the decision as the court overstepping its constitutional bounds.

“It’s a huge decision that once again puts Louisiana at the forefront of making constitutional law,” said Dan Ciolino, a law professor at Loyola University in New Orleans. “It’s a decision that people have been waiting for for a decade.”

Louisiana’s law allowed capital punishment for sex offenses against children under age 12. Passed in 1995, the law also made first-time offenders eligible for the death penalty, unlike Texas, South Carolina, Oklahoma and Montana — all of which required at least one previous conviction to allow the death penalty for child rape, The Associated Press reported. Following Wednesday’s ruling, those laws, too, become unconstitutional, The AP said.

In May, the Louisiana Supreme Court upheld the death sentence of Patrick Kennedy, a Harvey man convicted of raping his 8-year-old stepdaughter in 1998.

Kennedy became the first man in the nation in 40 years placed on death row for a capital offense that did not involve the death of the victim. In December, another Louisiana man, Richard Davis, was convicted of raping a 5-year-old girl and sentenced to death in Caddo Parish.

In the Supreme Court’s majority opinion, Justice Anthony Kennedy wrote that the Louisiana law is unconstitutional because it is inconsistent with “the evolving standards of decency that mark the progress of a mature society.”

Though acknowledging the Louisiana crime was horrendous and devastating, Justice Kennedy said it could not be compared to murder in its severity and irrevocability.

“There is a distinction between intentional first degree murder on the one hand and non-homicide crimes against individual persons, even including child rape, on the other,” Kennedy wrote.

Judge Samuel Alito Jr. wrote the dissenting opinion, stating that the determination of whether rapists of children could be put to death should remain with the states.

“The 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.”

Gov. Bobby Jindal expressed outrage at the ruling, issuing a statement calling it an “affront to the people of Louisiana.

“The opinion reflects a clear abuse of judicial authority, trampling the constitutional authority of states to act through the legislative process,” Jindal said. “The Supreme Court is dead wrong.”