Should the Death Penalty Extend to Non-Homicides?

[WSJ_law_blog]

Yesterday, after Chief Justice Roberts announced from the bench the Court’s opinion in Baze v. Rees, affirming the constitutionality of Kentucky’s lethal injection ****tail, Stanford’s Jeff Fisher argued a different death penalty case. Patrick Kennedy was convicted for the rape of his 8-year-old stepdaughter. Louisiana’s lawmakers, hoping to broaden capital punishment to include non-homicide rapists, want him executed for it. (Here are reports from the Times-Picayune and McClatchy.)

Slate’s Dahlia Lithwick was on-site for the arguments. Here are the highlights:

Where’s the Death Penalty Trend Headed? Fisher argued that if you look at the pair of recent cases that banned capital punishment for mentally retarded offenders (in 2002) and juvenile offenders (in 2005), it’s clear the social consensus is trending away from the death penalty. But Roberts said the clear trend that matters is not the one Fisher points to but rather that “more and more states are passing statutes imposing the death penalty in situations that do not result in death.” The cases declining to allow capital punishment for minors or the mentally retarded, he says, are “qualitatively different” from the distinction here between child rape and murder, because they focus on the “culpability of the offender” as opposed to the nature of the offense.

Scalia, writes Lithwick, almost chortled. “Did you ever hear the expression ‘hoist by your own petard?’” he asked Fisher. “The trend here is clearly in the direction of permitting more and more ? capital punishment for this crime!”

“I am not a moralist. I am a judge.” That was Justice Breyer’s response when Juliet L. Clark, the assistant DA from Louisiana who opposed Fisher, opened her argument with a graphic description of a sex crime. Breyer said he can imagine many such “horrible” circumstances, but said he worried that, if the Court reverses itself after decades of confining capital punishment to homicide, the court will rapidly find itself in the business of creating some highly complex “moral categorization of crime.”

“Just the way they used to,” said Scalia.

“Perhaps 200 years ago, that’s true,” retorted Breyer.

Have Crimes Gotten Worse? Ted Cruz, Texas’s solicitor general, argued that they have, reports Lithwick. In a 10 minute argument, Cruz claimed that the court’s recent trend away from expanding the death penalty is over, and that a 1977 case called Coker v. Georgia, which prohibited the death penalty for the rape of an adult, expressly left open the question of child victims. He said part of the reason states now want to penalize child rape with execution is that today, “we’re seeing crimes that 20, 30, 40 years ago, people wouldn’t imagine.” Describing Patrick Kennedy as a “300 pound man who violently raped an 8-year-old girl,” Cruz says he is “exquisitely culpable.”

LB Readers, we’d love to hear your thoughts (as always), but it’s a delicate and sensitive topic, and we’d ask you to keep your comments especially courteous and civil on this one. Thanks!