THE UNITED STATES is virtually alone among advanced democracies in permitting capital punishment. But widespread ambivalence about imposing the ultimate penalty has produced a minor industry of litigation that has had the effect of postponing executions for years and even decades. This state of affairs, which frustrates supporters and opponents of capital punishment, exists even though the death penalty has been imposed for more than a generation only in murder cases. Now imagine how clogged the courts would become if states were allowed to execute individuals for other crimes.
Just that scenario has arisen with a decision by the Louisiana Supreme Court. In upholding a death sentence for Patrick Kennedy, who raped his 8-year-old stepdaughter and then told her to implicate someone else, the majority noted that the U.S. Supreme Court "has characterized rape as a crime second only to homicide in the harm that it causes." That observation actually came in a decision that invalidated the death sentence of a convicted rapist. But the Louisiana court held out the hope that the current U.S. Supreme Court would regard this case differently. Unfortunately, it's not an idle hope.
In a 1977 ruling, only four justices signed an opinion saying that capital punishment for rape was always unconstitutional. Justice Lewis Powell voted to vacate the sentence on the narrower rationale that "death is disproportionate punishment for the crime of raping an adult woman," leaving open the possibility that rape of a child might qualify as a capital crime. A majority of the current court might be willing to seize on the distinction Powell drew by upholding the death penalty for Kennedy. And the justices might be influenced by the argument that Louisiana's law, which capitalizes the crime of aggravated rape of a child under 12, reflects "evolving standards of decency." As the Louisiana court noted, four other states have followed Louisiana's lead. Texas will join the list if, as expected, the governor signs a bill recently approved by the Legislature.
The rape of a child is an unspeakable crime. In its decision, the Louisiana court wrote that "short of first-degree murder, we can think of no other non-homicide crime more deserving" of the death penalty. But imaginative state legislators might easily discover other offenses worthy of the ultimate punishment: terrorism, major drug dealing (a capital offense under federal law) or violent hate crimes. Capital punishment has proved dysfunctional and divisive as a sanction for murder. The U.S. Supreme Court shouldn't compound the error -- and increase its own workload -- by allowing states to execute criminals who do not take a human life.