WASHINGTON The Supreme Court on Wednesday outlawed executions of people convicted of raping a child.
In a 5-4 vote, the court said the Louisiana law allowing the death penalty to be imposed in such cases violates the Constitution's ban on cruel and unusual punishment.
"The death penalty is not a proportional punishment for the rape of a child," Justice Anthony Kennedy wrote in his majority opinion. His four liberal colleagues joined him, while the four more conservative justices dissented.
There has not been an execution in the United States for a crime that did not also involve the death of the victim in 44 years.
Patrick Kennedy, 43, was sentenced to death for the rape of his 8-year-old stepdaughter in Louisiana. He is one of two people in the United States, both in Louisiana, who have been condemned to death for a rape that was not also accompanied by a killing.
The Supreme Court banned executions for rape in 1977 in a case in which the victim was an adult woman.
Forty-five states ban the death penalty for any kind of rape, and the other five states allow it for child rapists. Montana, Oklahoma, South Carolina and Texas allow executions in such cases if the defendant had previously been convicted of raping a child.
The court struggled over how to apply standards laid out in decisions barring executions for the mentally retarded and people younger than 18 when they committed murder. In those cases, the court cited trends in the states away from capital punishment.
In this case, proponents of the Louisiana law said the trend was toward the death penalty, a point mentioned by Justice Samuel Alito in his dissent.
"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."
But Kennedy said the absence of any executions for rape and the small number of states that allow it demonstrate "there is a national consensus against capital punishment for the crime of child rape."
Kennedy also acknowledged that the decision had to come to terms with "the years of long anguish that must be endured by the victim of child rape."
Still, Kennedy concluded that in cases of crimes against individuals as opposed to treason, for example "the death penalty should not be expanded to instances where the victim's life was not taken."
The decision does not affect the imposition of the death penalty for other crimes that do not involve murder, including treason and espionage, he said.
"It looks like a smashing victory on all fronts for us," said Denise LeBoeuf, a longtime capital defense attorney from New Orleans.
The girl's mother said, "We don't talk about that" and hung up.
The last executions for crimes other than murder took place in 1964, according to a database maintained by the Death Penalty Information Center.
Ronald Wolfe, 34, died in Missouri's gas chamber on May 8, 1964 for rape. James Coburn was electrocuted in Alabama on Sept. 4 of that year for robbery.
Patrick Kennedy was convicted in 2003 of raping his stepdaughter at their home in Harvey, La., outside New Orleans. The girl initially told police she was sorting Girl Scout cookies in the garage when two boys assaulted her.
Police arrested Kennedy a couple of weeks after the March 1998 rape, but more than 20 months passed before the girl identified him as her attacker.
His defense attorney at the time argued that blood testing was inconclusive and that the victim was pressured to change her story.
The Louisiana Supreme Court upheld the sentence, saying that "short of first-degree murder, we can think of no other non-homicide crime more deserving" of the death penalty. State Chief Justice Pascal Calogero noted in dissent that the U.S. high court already had made clear that capital punishment could not be imposed without the death of the victim, except possibly for espionage or treason.
A second Louisiana man, Richard Davis was sentenced to death in December for repeatedly raping a 5-year-old girl in Caddo Parish, which includes Shreveport. Local prosecutor Lea Hall told jurors: "Execute this man. Justice has a sword and this sword needs to swing today."
The high court's decision leaves intact Kennedy's conviction, but will lead to a new sentence.
The case is Kennedy v. Louisiana, 07-343.
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