During the recent Supreme Court argument in Louisiana v. Kennedy (the case considering the constitutionality of capital punishment for child rapists), counsel for the state detailed the serious injuries suffered by the 8 year old rape victim - including some that required surgical intervention. At the end of a graphic account of this damage, Justice Stevens asked if the injuries were permanent and counsel for the state said they were not. Counsel then stated that the rape inflicted (presumably permanent) psychological injuries on the victim. It thus seems that, to the degree that the human harm must be proportionate to the sanction, Louisiana believes serious, but relatively short-term, injury, paired with permanent psychological injuries, is sufficient to render death constiutional.
Nobody should diminish the awfulness of this crime, the pain and fear the victim felt at the time of the incident, and the psychic scars that it surely left. But since the return of the death penalty, we have not executed a single person who did not actually kill someone. If the Court considers the death penalty suitable under the circumstances in Kennedy, it seems that the sanction could be legally imposed for scores of offenses - everything ranging from arson, to assault, to attempted murder, and probably others. An unarmed street assault, for example, may cause the victim pain, injuries, and long term psychological harm.
Maybe cases with child victims are different. As I've previously written here and here, the parties tried to stoke broad anxiety over child safety in their briefs. But it's awful hard to figure out a principled basis to say that assaults/rapes/arson victimizing 17 year olds are inherently worse than those crimes, when perpetrated against 18 year olds. That's not to say the Court might not draw that line; they did it in reverse when they outlawed death for child offenders in Roper v. Simmons. And I suppose, just as Louisiana tried to turn the arguments about shifting national consensuses on those who first offered them, supporters of death-for-rape might make the same point about age: the line may be irrational, but it's how we've decided to analyze these matters.
At the end of the day, it seems to me that the Court is either going to maintain the prohibition on executing rapists, or the entire death penalty doctrinal regime - everything post Furman - may be on its way out. That doesn't mean that the death penalty will necessarily spread to every violent or dangerous offense; each legislature will make its own decisions. Perhaps allowing legislatures freer reign will cause a broad public debate and ultimately lead citizens to revisit their apparent taste for capital punishment. But I'm a skeptic. As we've learned again and again, no legislator ever lost her job by voting for tougher criminal sanctions.
To be fair, in Louisiana v. Kennedy, I believe the dividing line was 12 or 13, not 18. Of course, one could easily ask a similar question about 11/12 or 12/13, but I think it becomes easier to consider if the age is lower (e.g., both an 11-year-old and a 12-year-old may be inherently scarred, but we can safely say with a higher degree of confidence that an 11-year-old will be scarred than a 17-year-old).
Posted by: merevaudevillian | April 28, 2008 at 03:44 PM