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Wednesday, June 25, 2008

Kennedy v. Louisiana Decided

The Supreme Court this morning decided Kennedy v. Louisiana, the child rape case that many of us thought would be a test of the future of the death penalty in the US.  By a 5-4 vote the Court struck down Louisiana's death penalty statute as it applies to the rape of a child under the age of 12.  The Court, in 1977's Coker v. Georgia decision had held that the death penalty was a disproportionate punishment "for the rape of an adult woman," leaving open the possibility that it was proportionate for the rape of a child.  The Court closed that door this morning, concluding its opinion:  "Difficulties in administering the penalty to assure against its arbitrary and capricious application require adherence to a rule reserving its use, at this stage of evolving standards and in cases of crimes against individuals, for crimes that take the life of the victim."

In recent years the Supreme Court has prohibited the execution of the mentally retarded and those who were under 18 when they committed their crimes.  Add to that list today those who commit crimes  that do not "take the life of the victim" and it is clear that the Supreme Court is attempting to limit, though certainly not eliminate, the use of the death penalty in the U.S.  The Court appears to be taking seriously the mandate it has set out at least since Furman v. Georgia was decided in 1972 that states limit the imposition of the death penalty to the worst of the worst of criminal offenders.

And the numbers bear this out.  Since their highs in the late 1990s,  executions are down by more than half and new death sentences are down by more than two-thirds.   With more than 3,000 people on the nation's death rows and only 42 put to death last year, the nation has a nearly 80 year supply of condemned inmates at the moment.  What this means for the future of the death penalty, is less clear.  Either the death penalty is beginning its slow descent into disuse or the current round of procedural and substantive reform will have the effect of sanitizing and re-invigorating the penalty in the years to come.

Posted by Sam Kamin on June 25, 2008 at 11:48 AM | Permalink


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I'm having exam conferences with students for most of the day, so my blogging is little behind. If you still want to get your fill of Kennedy v. Louisiana coverage (and you aren't too distracted by the Court's ruling in [Read More]

Tracked on Jun 26, 2008 3:39:23 PM


I self-reported in the late '80s, ended up doing a dime tight, now out 8yrs...if I re-offend I wish they would high me...raping is the worst form of bullying. In some rape cases, the death penatly is justified. Just my 2 cents...PEACE

Posted by: jdawg | Jun 28, 2008 10:27:27 AM

Good point, although on the flip side, eyewitness testimony is notoriously unreliable, even among adults. Plus, anyone familiar with young children knows that they don't always tell the truth (sometimes as a deliberate lie -- one kid will say, "she hit me first," when you know for sure it isn't true -- or sometimes because they are confused or misremember something, or because they are tricked and fed leading questions by investigators). Consider some of the infamous incidents where children lied when making accusations of sexual abuse:

Posted by: Stuart Buck | Jun 25, 2008 5:47:34 PM

When I read Justice Kennedy's description of the facts in this case (which included an absence of DNA evidence), I thought: Justice Kennedy thinks this defendant might not be guilty. And then, at page 33 of the opinion, the concern is generalized, with Kennedy saying that the unreliability of child victim testimony represents a "serious systemic concern . . . relevant to the constitutionality of making it a capital offense." Though gruesome, this case, in hindsight, may have been precisely the wrong case for a state to try to expand the reach of the death penalty.

Posted by: Jason Mazzone | Jun 25, 2008 5:42:40 PM

Since one of the concerns with the application of the death penalty is its irreversibility-- that we can never be certain that after we execute someone that we won't later discover exculpatory or mitigating evidence that might've saved the defendant's life had it been found in time-- does it alleviate anyone's concerns that a rape victim is in a better position to provide reliable evidence about their assailant's identity and the facts surrounding the crime than a murder victim, given their ability to communicate and whatnot?

Posted by: Paul Washington | Jun 25, 2008 2:37:47 PM

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