We are witnessing either a burgeoning new trend for executing rapists--or the last gasps of capital punishment.
This week, the U.S. Supreme Court will hear a case about whether--for the first time in decades--a criminal can be executed for a crime that isn't murder. Patrick Kennedy was convicted in 2004 for the rape of a child, his 8-year-old stepdaughter, and the state of Louisiana contends that his crime is tantamount to murder and worthy of death. Nobody in this country has actually been executed for anything other than murder since 1964, although five states, including Louisiana, have laws on their books permitting capital punishment for the rape of young children. Several others are considering broadening their laws to do the same. So the court must determine, in Kennedy v. Louisiana, whether the Eighth Amendment's prohibition of cruel and unusual punishment bars the execution of someone who didn't commit a murder, but did violate a young child.
Capital punishment in America has been in a slow decline for years, with "slow" being the key word. According to the Death Penalty Information Center, which compiles national statistics on capital punishment, the number of executions has dropped steadily since 1998, hitting a 10-year low of 53 in 2006. Confidence in the death penalty has also dipped slightly: a Gallup poll taken in 2006 showed that while two thirds of Americans endorsed capital punishment for murderers, given the choice between the death penalty and a life sentence without parole, slightly more preferred life in prison, for the first time in decades. This dip has been attributed to a number of factors: the reported 127 death-row exonerations now logged by the DPIC, books by the likes of John Grisham and pervasive evidence that racism still taints the capital-sentencing system. Still, public opinion remains in favor of the death penalty, at least for murder.
All the statistics, polls and trends I've just cited would be utterly irrelevant to any legal discussion of whether a child rapist can be executed were it not for the odd constitutional test that weighs "cruel and unusual" punishment against "evolving standards of decency." This is an exercise in molar-grinding frustration for members of the Supreme Court devoted to adhering to the Constitution's original text. When the court ended the death penalty for mentally disabled offenders in 2002 and for those who were minors at the time of their crimes in 2005, it did so via an elaborate interpretive dance that required putting one finger on the pulse of foreign courts and the other into the wind of U.S. public opinion. If you're not a fan of public hangings, the notion that standards of cruelty can "evolve" has its appeal. But the new fight over child rapists suggests that attempts to measure the shifting winds of public opinion often reveal more about who's doing the measuring than about what's being measured. …