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High Court Rejects Death Penalty for Child Rape


From NPR News, this is All Things Considered. I'm Robert Siegel.


And I'm Michele Norris. The U.S. Supreme Court ruled today that it is unconstitutionally cruel and unusual punishment to execute someone for raping a child. It was a close vote, five to four. The justices declared that execution is a disproportionately severe punishment for a crime where the victim is not killed.

The decision resonated on the presidential campaign trail, with both candidates disagreeing with the ruling. Barack Obama called it a blanket prohibition of the death penalty that could constrain states that want to use it. John McCain called the ruling an assault on law enforcement and its ability to punish felons. NPR legal affairs correspondent Nina Totenberg reports on the court's decision.

NINA TOTENBERG: More than 30 years ago, the Supreme Court struck down the death penalty for the non-homicide rape of an adult woman. But in recent years, a few states have enacted death penalty laws for child rape. Six such laws are currently on the books.

The test case that the court ruled on today involved a Louisiana man named Patrick Kennedy sentenced to death for raping his 8-year-old stepdaughter. The Louisiana Supreme Court upheld the sentence with a suggestion that the U.S. Supreme Court, with two new Bush appointees, might be more willing now to allow execution for non-homicide crimes.

Today, though, the court refused the invitation to allow more latitude, ruling that execution is an unconstitutionally disproportionate punishment for any non-homicide rape. Dissenting were the two Bush appointees, Chief Justice Roberts and Justice Alito, along with the court's two other conservative justices Scalia and Thomas. Stephen Bright is senior counsel for the Southern Center for Human Rights.

Mr. STEPHEN BRIGHT (Senior Counsel, Southern Center for Human Rights): The case, really, just leaves things as they are. It's consistent with what the Supreme Court has said over the last 30 years, which is that the death penalty can only be imposed in cases where the victim is killed.

TOTENBERG: Speaking for the court majority today, Justice Anthony Kennedy pointed to the fact the the death penalty for child rape has not been imposed in 44 years, since way before the Supreme Court's first decision outlawing execution for non-homicide rape. That and the fact that only two people are on death row for child rape, both in Louisiana, is ample proof, said Kennedy, that there is a national consensus against the practice.

He acknowledged that a non-homicide rape of a child may be devastating to the child, but under the standard views by the Supreme Court for 50 years, he observed, the death penalty must be reserved for the worst crimes, a determination that in the last analyses is up to the Supreme Court, applying evolving standards of decency.

Kennedy also pointed to particular problems posed by executing child rapists. For example, the testimony of children is notoriously unreliable and subject to influence. Death penalty opponents say this case proves the point. Here, the 8-year-old stepdaughter told two dramatically different stories. In lengthy video tape interviews with the psychologist shortly after the crime, she said she was raped by two boys whom she couldn't identify. Pressed by the psychologist at one point, she burst out that she knows the police want her to accuse her stepfather.

Unidentified Child: I am going to tell the same story. They just want me to change it.

Unidentified Woman: Who wants you to change it?

Unidentified Child: The policemen. They want me to say that Dad gone and done it, to change it.

TOTENBERG: Two years later, after the child has been removed from her home and returned, on condition that she fess up to her stepfather's role, she changed her story and said her stepfather had raped her.

Unidentified Child: I woke up one morning and he was on top of me.

Unidentified Woman: And what happened then?

Unidentified Child: He just raped me.

TOTENBERG: Justice Kennedy today pointed to another problem. The underreporting of child rape is due in part to the fact that in most cases, the rapist is a close family member or friend. Child advocates, he observed, do not favor the death penalty because it will only make children and other family members they might tell even less willing to come forward. Judy Benitez is executive director of the Louisiana Foundation Against Sexual Assault.

Ms. JUDY BENITEZ (Executive Director, Louisiana Foundation Against Sexual Assault): This is someone that they have loved. They may be willing to see them put in prison, but they may not be willing to run the risk of having them put to death.

TOTENBERG: Writing for the dissenters today, Justice Samuel Alito said that the court had no basis on which to strike down the death penalty for child rape, no matter how young the child or how sadistic the crime. Former Texas Solicitor General Ted Cruz echoes that criticism.

General TED CRUZ (Former Texas Solicitor): The court has erected a categorical ban that all child rapists are ineligible for capital punishment no matter how serious the damage on the child, so long as the child is not killed.

TOTENBERG: A second criminal law decision today will grab fewer headlines but may have more practical impact. The issue was when, if ever, the prior statements of a murder victim may be used at the trial of the accused murderer.

The case involved a defendant named Dwayne Giles who shot his ex-girlfriend six times. He claimed self-defense, and at the trial, the judge admitted the evidence statements made by the ex-girlfriend to police three weeks before the murder. The girlfriend who was crying told the police that Giles had accused her of having an affair, punched and choked her, and when she broke free, threatened her with a knife.

Giles appealed his conviction, claiming that the prosecution's use of those statements by a person he could not cross-examine violated his constitutional rights. Today, the Supreme Court agreed.

Writing for the six to three majority, Justice Antonin Scalia noted that the Sixth Amendment of the constitution guarantees the accused the right to confront witnesses against him. The only exception to that requirement, said Scalia, would be if the accused committed the murder with the purpose of silencing the witness. The notion that a judge may strip a defendant of his right to confront witnesses simply because a judge decides that the accused is guilty is akin, said Scalia, to dispensing with a jury trial altogether because the defendant is obviously guilty.

Writing for the three dissenters, Justice Stephen Bryer accused the majority of creating a windfall for domestic abusers who may be able to insulate themselves from conviction by intimidating and even killing their partners, safe in the knowledge that previous victim statements to police cannot be used. Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright NPR.

NPR transcripts are created on a rush deadline by an NPR contractor. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.

Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.