As I mentioned on Monday, the US Supreme Court’s holding oral argument this week in Kennedy v. Louisiana, which presents the issue of the constitutionality of imposing the death penalty for child rape.  The case would seem to be dictated by precedent:  back in 1977, in Coker v. Georgia, the Court struck down a statute which imposed the death penalty for rape, holding that death was a “grossly disproportionate” punishment.  Since then, the view has predominated that capital punishment is reserved for situations involving its Biblical roots of “a life for a life.”

That doesn’t pre-ordain the result in Kennedy, however.  In Coker, the woman was an adult.  (Actually, she was sixteen, but was treated as and referred to as an adult in the Court’s decision.)  She’d also been released without any further injuries.  The state in Kennedy, on the other hand, is arguing that child rape inflicts far greater harm upon a child than does rape upon an adult.  While one can quibble as to the merits of that assertion, it should be sufficient to take it out of the Coker analysis.

Where it goes after that is another story.  In the past several years, the Court has struck down the imposition of the death penalty on the mentally retarded (Atkins v. Virginia, in 2002) and on juveniles (Roper v. Simmons, in 2005).  In the latter case, the Court set down a two-part test for determining whether capital punishment is constitutionally permissible for a certain category of crime or defendants:  first, whether there are objective signs of a consensus, such as actions by state legislatures, to allow the death penalty for such crimes, and second, whether the Court itself deems death to be a disproportionate punishment for the crime.

I’ve mentioned before the tendency of courts to come up with a “formula” in an effort to justify a particular result, and this seems to be a classic case of it.  Why go to the trouble of measuring whether a consensus exists if you’re going to make your own determination of whether the penalty is disproportionate?

Whatever the merits of the Roper test, it’s hard to see the Court backtracking from that:  the same five members who voted for the majority in Roper are still on the Court, and Kennedy, arguably the most likely to switch, was the one who wrote the Roper opinion.  The state argues in Kennedy that more states are adopting the death penalty for child rape — the current count is seven, and three more are considering it.  Given that more than twice that number allowed the death penalty for juveniles when Roper was decided, it’s not clear that argument’s going very far.

For those reasons, I find it hard to see the Court upholding the death penalty in Kennedy.  There’s an additional reason.  Although there are some 16,000 homicides a year in the United States, relatively few of them are subject to the death penalty:  the statutes provide a variety of aggravating circumstances which must be proved in order to impose a death sentence, which has the effect of winnowing out a large number of murder cases.  With child rape, though, it’s hard to see how that could be effectively done.  In fact, the jury which sentenced Kennedy to death found two aggravating circumstances:  that the offender was engaged in the commission of an aggravated rape, and that the victim was 12 years old or younger.  As Kennedy’s lawyers put it in their petition for certiorari, this simply restates the crime and one of its elements.

With no meaningful way of narrowing the range of crimes subject to death, that leaves an awful lot of discretion up to prosecutors and juries.  Moreover, child rape convictions are often secured solely on the basis of the child’s testimony, and there are any number of studies and cases addressing the problem with that.

Last year, there were fewer executions, and fewer death sentences imposed by juries, than in any year since the Court reinstituted capital punishment in 1976 in Furman v. Georgia.  In view of the problems that have come to light in the application of that penalty to homicides — 128 people have been released from death row because their innocence was subsequently established — adding a whole new category of crime to the mix doesn’t seem like the best idea.