法律英语：100 Death Penalty（在线收听）

by Michael W. Flynn
First, a disclaimer: Although I am an attorney, the legal information in this podcast is not intended to be a substitute for seeking personalized legal advice from an attorney licensed to practice in your jurisdiction. Further, I do not intend to create an attorney-client relationship with any listener.

The Supreme Court concludes its term at the end of June, and each year, the court typically releases its most-awaited and sharply-divided opinions. Today I will discuss one of those opinions in which the court ruled that sentencing a person to death for raping a child is unconstitutional.

The Eighth Amendment provides:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

This amendment is broadly interpreted to limit the punishment that the government can inflict on you. But, as with so many constitutional clauses, interpreting the precise meaning of a qualitative phrase is difficult, and the phrase “cruel and unusual” is no exception.

Justice Kennedy, writing for a five-justice majority, began the summary of the facts, writing, “Petitioner's crime was one that cannot be recounted in these pages in a way sufficient to capture in full the hurt and horror inflicted on his victim or to convey the revulsion society, and the jury that represents it, sought to express by sentencing petitioner to death.”

And the facts of the case truly are heinous. Patrick Kennedy (no relation) drugged and raped his eight-year-old stepdaughter before she went to school one morning. I will not recount the injuries that the girl sustained, but they were severe to say the least, and required emergency surgery.

Louisiana charged the defendant with aggravated rape of a child, which is a capital crime in that state. The jury unanimously convicted the defendant of the crime, and then unanimously sentenced him to death.

The Louisiana Supreme Court upheld the verdict, and held that the Eighth Amendment’s prohibition on cruel and unusual punishment did not bar sentencing a man to death who had committed a crime of such a heinous nature.

The United States Supreme Court reversed, holding that the Eighth Amendment bars Louisiana from imposing the death penalty for the rape of a child where the crime did not result, and was not intended to result, in the victim's death.

The Eighth Amendment was passed in the 18th Century, but the Supreme Court has ruled that, in order to determine whether a punishment goes too far, the Court must look to evolving standards. Recall that, when the Constitution and Bill of Rights took shape, punishments such as public beatings, and locking citizens in stocks in the public square were utilized. The Supreme Court has recognized in several cases that the country’s original understanding of what is cruel and unusual cannot be the frozen standard against which modern punishments are viewed. Rather, the Court looks to several factors to conclude whether a sentence passes constitutional muster including 1) the proportionality of the punishment to the crime, and 2) the acceptance by today’s society as to the punishment.

On the first main factor, the Court determined that capital punishment is not proportional to the crime of child rape when the defendant did not intend to, nor did he cause, the victim to die. The Court recognized that child rape is brutal and despicable, but that the death penalty, the ultimate and irrevocable sanction against a person, should be reserved for defendants who kill. The Court based this decision in part on the notion that murder is the only crime that ends a person’s life. All other crimes, while harmful, still allow the person to continue living.

On the second factor, the acceptance by society, the Court reviewed the history of capital punishment for rape in America, and how state legislatures had dealt with the issue. In 1925, 18 states allowed for capital punishment for rape. The last time a person was executed for rape was 1964. In 1972, the Court struck down the death penalty as a punishment for raping an adult. After that ruling, only three states passed laws that purportedly allowed execution for rape of adults and children, and three other states passed laws that allowed for execution for raping a child. Further, the Court has recently struck down the death penalty for the mentally retarded and for juveniles.

Looking at these trends, the Court concluded that society no longer tolerated execution of defendants for the crime of rape, and thus the punishment was cruel and unusual as measured by today’s standards.

In dissent, Justice Alito argued that it is within each state’s right to determine that the death penalty is appropriate for a crime as heinous as child rape. He argued that the consensus the majority relied upon was not as reaching as described. States are moving in the direction of punishing child rape by death, and also that a child who is raped is permanently damaged, albeit alive. Justice Alito and three other justices would have upheld the sentence.

In the aftermath, some politicians and legal commentators have decried this decision as incorrect. While they might want it changed, there is little to do legislatively about it short of amending the constitution. Alternatively, the states might try to write statutes that comport with this decision, allowing for execution of a person who rapes with the intent to kill for example. We must wait and see.

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