It was 44 years ago this spring that the state of Missouri put to death Ronald Wolfe for the crime of rape. Though no one could know it then, his execution would prove to be the end of an era. Rape had been a capital crime for much of American history, and it remained so through the middle decades of the 20th century, almost exclusively in the South. About nine of 10 of those sentenced to death for rape during those years were black.
In 1977, a year after having restored the death penalty as a constitutional punishment for murder, the U.S. Supreme Court branded death a cruel and unusual punishment for rape. The justices overturned a death sentence for three-time rapist Ehrlich Coker and strongly suggested that only homicide qualifies as a capital crime. Coker’s victim was just 16 years old, but she was referred to as an “adult woman” in Coker v. Georgia, 433 U.S. 584.
“We have the abiding conviction that the death penalty, which is unique in its severity and irrevocability, is an excessive penalty for the rapist who, as such, does not take human life,” wrote Justice Byron White.
On April 16, the court will reconsider that “abiding conviction” in the case of a convicted child rapist from Louisiana. Kennedy v. Louisiana, No. 07-343.
Structurally, this case resembles Roper, insofar as it considers whether the nature of a particular crime can ever warrant capital punishment. As only six states make rape a capital crime, the defendant will argue that there is no national consensus in favor of the death penalty for rape (though a number of states, such as Colorado, have child-rape bills moving through their legislatures in reaction to the Kennedy case).
And should the Roper majority reconstitute itself, the similarities between the two cases would present an opportunity for yet another exploration of foreign opinions on the subject. According to Amnesty International, fewer than half of the nations with a death penalty on the books allow it for child rape. In its petition to the Court, the defense did not cite international law (though it did urge the Court to "pause" before condoning the execution of child rapists, as the practice, it argued, is "heavily tinged with the scourge of racism").
Should the Court strike down the Louisiana statute, the repercussions for criminal justice could go far beyond the realm of rape, depending on how broadly the decision is couched. As Louisiana argues in its brief, 15 out of 38 states and the federal government authorize capital punishment for crimes other than murder, including treason, espionage, aircraft piracy, and aggravated kidnapping. If the Court holds against the state on the grounds that death is always "grossly out of proportion" for a crime not resulting in death, one of the federal government's strongest defenses against double agents could be jeopardized.
As always, you can read about Kennedy posts and articles all around the web at the Kennedy v. Louisiana Resource Page.