We all remember the famous line from “The Godfather” when Don Corleone was asked to have someone killed in retribution for the rape of his daughter. His response? “No my friend, I cannot do that …it would not be justice … your daughter is still alive.”
Is the Don right, or do child rapists deserve to die? Would the threat of the death penalty for child rape work to deter future rapists? These questions are very complex and layered, which is why the Supreme Court of the United States is taking them up.
The people who commit rape deserve to be punished swiftly and severely. But is there such a thing as punishing rapists too severely? The Supreme Court recently heard oral arguments on the issue of whether rapists can be sentenced to death, leaving the future of rapists in the hands of the nine highest justices.
Forty-three years ago was the last time the United States implemented the death penalty for a non-homicidal offense — the rape of an adult. And after that, many states decided that they could not execute someone for a non-murder offense.
More recently, the Supreme Court held that killing someone for the rape of an “adult woman” violated the 8th Amendment's ban against “cruel and unusual punishment.” In defending that decision, the majority opinion emphasized that “life is over for the murder victim, while life for the rape victim goes on.”
Some have said that this decision desensitized the nation to the crime of rape, and underestimated the psychological and emotional damage of rape. A lot of scholars contend that the decision set back our country, and hope that this new case before the Supreme Court will change that.
The case of Kennedy v. Louisiana is a little different than past cases in that it involves the rape of a minor. This is a case of “first impression” for the Supreme Court because it has not been decided whether the death penalty for a child rapist violates the 8th Amendment. Louisiana state law authorizes the death penalty for the aggravated rape of a minor.
Before a jury of his peers, Kennedy was convicted of aggravated rape of his eight-year-old stepdaughter, and, under Louisiana law, sentenced to death. Kennedy appealed on two grounds, contending that the punishment is excessive under the 8th Amendment, and that it does not adequately narrow the class of death-eligible rapists in a constitutionally acceptable way. The Supreme Court of Louisiana disagreed, however, and affirmed Kennedys' conviction. Now the Supreme Court faces the question of whether child rapists can be put to death by the state.
The Supreme Court will use old case precedent, as well as current public opinion to reach its decision. Binding precedent is important but the decision must also comport with “evolving standards of decency that mark the progress of a maturing society” (Trop v. Dulles). These “evolving standards” basically mean the trend of current public opinion of whether the death penalty is excessive for child rapists. The court will look at statutes from all 50 states, as well as international court opinions to make its determination. Of the 38 states with the death penalty (12 abolished it completely), only FIVE allow it for child rape. So how do we determine a “trend”? Abolitionists will argue that because only five states permit it, then the public opinion is clearly against it. Death penalty advocates will argue that four states have enacted capital punishment for child rape since though, clearly showing a trend towards allowing it. You can see how difficult the decision becomes, especially when the stakes are so high.
Further complicating matters, the Supreme Court also has to make sure that the punishment would fit the twin justice goals of retribution and deterrence. Retribution basically means the punishment should be equal to the moral culpability of the crime, or that “the time fits the crime.” And deterrence means that the punishment will adequately deter others in society from committing the same type of crime. So are these two goals served when a child rapist gets the death penalty? Some say yes, some say no.
One thing is clear though — this decision will have a serious impact on the future of our country's criminal prosecutions. If the Supreme Court decides that the death penalty is constitutionally permissible for child rape, it has opened the door for every state to enact capital punishment for any type of non-homicidal crime. If the death penalty is okay for child rape, then what's next? Non-premeditated murder? Kidnapping? Assault and battery? We could be headed down a slippery slope, not to mention the onslaught of litigation the courts would endure from 8th Amendment claims.
In the end, the court should decide against capital punishment, and for life in prison without parole — in this instance. I realize that many people don't trust the criminal justice system to actually keep people in jail for life without parole, but that mistrust cannot justify implementing the death penalty for crimes less than murder.
Trust me, this mother finds the thought of child rape vile and sickening. But, as memorialized in “The Godfather,” the life of the rape victim does go on.
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Lis Wiehl joined FOX News Channel as a legal analyst in October 2001. To read the rest of Lis's bio, click here.