Supreme Court tosses out death penalty for child rapists

When Texas' leading politicians called loudly for the death penalty for repeat child rapists last year, they knew there was a good chance the U.S. Supreme Court might find the provision unconstitutional. Legal experts told them so – repeatedly.

And on Wednesday the Supreme Court, in a 5-4 decision in a Louisiana case, did just that, ruling that "the death penalty is not a proportional punishment for the rape of a child."

The decision didn't surprise many, said Shannon Edmonds, staff attorney for government relations with the Texas District and County Attorneys Association.

"A lot of legal experts had seen the writing on the wall from the Supreme Court," he said. "Whether those people, on both sides, agree with what the Supreme Court was going to do or not, didn't mean they didn't see it coming."

The decision does not entirely overturn Jessica's Law in Texas, the statute named after Jessica Lunsford, a Florida girl who was abducted and killed in 2005. The ruling invalidates the Texas death provision, but legislators created a fallback position in the statute: Life without parole would apply if capital punishment for child rape was outlawed.

While the court ruling effectively ends the use of the death penalty for child rape, the court left open its use for crimes such as "treason, espionage, terrorism, and drug kingpin activity, which are offenses against the state," the ruling states. "As it relates to crimes against individuals, though, the death penalty should not be expanded to instances where the victim's life was not taken."

Mr. Edmonds said as far as he knows, no Texas prosecutor has sought the death penalty for sexual assault of a child.

Lt. Gov. David Dewhurst, one of several politicians who pushed for Jessica's Law and became one of its most ardent supporters, said in a prepared statement that he was disappointed by the decision. "The death penalty is an appropriate form of punishment for repeat child molesters," he said.

Texas Attorney General Greg Abbott also was vocal in his support of the law on the campaign trail. His office argued in support of the Louisiana case before the Supreme Court in April.

The attorney general's spokesman, Jerry Strickland, said the decision "marks a setback for Texas' efforts to punish repeat child rapists."

"Texas will continue to seek the toughest penalties for the most barbaric child predators," he said.

State Sen. Rodney Ellis, the Houston Democrat who was the Senate's lone "no" vote against the death penalty for child sex offenders, said he's pleased with the Supreme Court ruling.

"At some point we have to decide where to draw the line on something being politically right but morally wrong," he said.

Politicians seeking to polish their tough-on-crime credentials may have been disappointed by the decision, but some victims' rights advocates were pleased.

"We join sexual assault coalitions across the country in applauding the Supreme Court's step toward ensuring that prosecutions of child sexual assault across our nation remain victim-centered and child-friendly in their approach," said a prepared statement released by the Texas Association Against Sexual Assault.

Some organizations had warned legislators the law could result in victims being unwilling to prosecute or perpetrators less likely to leave their victims alive.

"Most child sexual abuse victims are abused by a family member or close family friend," the statement from the Texas association said. "The reality is that child victims and their families don't want to be responsible for sending a grandparent, cousin or long time family friend to death row."

No one has been executed for rape in the United States since 1964, according to the Death Penalty Information Center. In 1977, the Supreme Court outlawed death for cases involving rape of an adult victim.

But in 1995, as public concern over sex offenders rose, Louisiana enacted a law calling for death for child rapists. Initially, the Louisiana law pertained to victims younger than 12 and first-time offenders. The law was later amended to include victims younger than 13.

A handful of other states – Montana, South Carolina, Oklahoma, and Texas – followed suit with similar laws. But those states limited the penalty to repeat offenders. The Texas law applied to cases with victims younger than 14.

Louisiana is the only state to attempt to use the penalty since enacting it. Two inmates are on death row at Angola for rape of a child.

The defendant in the case before the Supreme Court, Patrick Kennedy, was condemned in 2004 for a sexual assault on his 8-year-old stepdaughter.

Dianne Clements, president of Justice for All, a victims' advocacy group, thinks the death penalty is appropriate for such a heinous crime, but isn't surprised by the court's decision.

"You can certainly say the Supreme Court once again has opted to favor criminals," she said, but added that the decision is not a huge setback for death penalty supporters.

"We don't want to execute for rape of a child," she said, summing up the decision. "But really, if you read between the lines, [it] said we support the death penalty for capital murder."

(source: Dallas Morning News)