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Child rape revisited?

An error may prompt the Supreme Court to rehear a death penalty case. But its ruling should stand.

September 10, 2008

An embarrassed U.S. Supreme Court indicated this week that, because of a statistical error in the majority opinion, it may reexamine its controversial holding of only three months ago that the death penalty for child rapists is unconstitutional. Fortunately, the justices can come to the same correct conclusion using a more straightforward rationale: that executing anyone for a crime other than homicide shocks the conscience.

It has been 51 years since the court last agreed to rehear a major constitutional case, and it may yet decline to do so in this situation. But the court has asked lawyers for new briefs from both parties -- and from the Bush administration -- in the case of a Louisiana man sentenced to death for raping his 8-year-old stepdaughter. The case has spilled from the judicial system into the presidential campaign, with both Barack Obama and John McCain denouncing the decision.

The reason the court is considering revisiting its 5-4 decision is that Justice Anthony M. Kennedy's opinion for the majority understated the number of jurisdictions that imposed the death penalty for child rape, arguing that only six states did so and implying that the federal government was among the jurisdictions that had refused to join them. In fact, Congress had authorized the execution of child rapists as part of the military justice system.

Kennedy's error is significant because he argued that the handful of jurisdictions that authorized the death penalty for child rape proved that the punishment departed from the "evolving standards of decency" the court has used in some cases to decide whether a penalty is "cruel and unusual" and thus a violation of the 8th Amendment. Citing the mistake, Louisiana and the Bush administration asked for a rehearing.

As we argued after the decision, the opinion should have limited itself to a finding by the court itself that executing someone for a crime other than murder -- even a heinous crime such as the rape of a child -- was unconstitutional. Kennedy did make that point, but also insisted on straying into statistical analysis. That was a mistake, partly because -- as Justice Samuel A. Alito Jr. observed -- many states probably had refrained from passing laws like Louisiana's because of a 1977 high court decision overturning the death sentence of a man who raped a married woman.

In the leading opinion in that case, Justice Byron White wrote: "Rape is without doubt deserving of serious punishment, but in terms of moral depravity and of the injury to the person and to the public, it does not compare with murder, which does involve the unjustified taking of human life." If the court does rehear the Louisiana case, it should embrace White's eloquent argument and not engage in a numbers game.

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