Man seemingly has endless capacity to engage in acts of the most grotesque inhumanity, and is especially adept at physical and emotional cruelty and brutality to the weak and powerless.

Child rape — hardly a rare occurence in this nation — is a most shocking and sickening example of this.

Louisiana is one of six states that seeks to impose the death penalty for child rape.  Missouri legislators this year considered, but did not vote on, a vote to add Missouri to the list.

Today, a 5 to 4 majority of the U.S. Supreme Court, in a decision written by Justice Anthony Kennedy (pictured above with Justice Antonin Scalia at the Red Mass in Washington) decided, categorically, that the death penalty in cases in which a child has been raped but not killed is unconstitutional.

Read the entire decision to learn the majority’s reasons for striking down the state statute authorizing the death penalty.

But consider and let me know your thoughts on the points made in these excerpts from the majority decision, which I thought were especially interesting:

It is not at all evident that the child rape victim’s hurt is lessened when the law permits the death of the perpetrator.

Capital cases require a long-term commitment by those who testify for the prosecution, especially when guilt and sentencing determinations are in multiple proceedings.

In cases like this the key testimony is not just from the family but from the victim herself. During formative years of her adolescence, made all the more daunting for having to come to terms with the brutality of her experience, (the victim) was required to discuss the case at length with law enforcement personnel. In a public trial she was required to recount once more all the details of the crime to a jury as the State pursued the death of her stepfather.

* * *

Society’s desire to inflict the death penalty for child rape by enlisting the child victim to assist it over the course of years in asking for capital punishment forces a moral choice on the child, who is not of mature age to make that choice. The way the death penalty here involves the child victim in its enforcement can compromise a decent legal system; and this is but a subset of fundamental difficulties capital punishment can cause in the administration and enforcement of laws proscribing child rape.

* * *

There are, moreover, serious systemic concerns in prosecuting the crime of child rape that are relevant to the constitutionality of making it a capital offense. The problem of unreliable, induced, and even imagined child testimony means there is a “special risk of wrongful execution” in some child rape cases.

This undermines, at least to some degree, the meaningful contribution of the death penalty to legitimate goals of punishment.

* * *

With respect to deterrence, if the death penalty adds to the risk of non-reporting, that, too, diminishes the penalty’s objectives.

Underreporting is a common problem with respect to child sexual abuse.
Although we know little about what differentiates those who report from those who do not report one of the most commonly cited reasons for nondisclosure is fear of negative consequences for the perpetrator, a concern that has special force where the abuser is a family member.

The experience of the (friends of the court) who work with child victims indicates that, when the punishment is death, both the victim and the victim’s family members may be more likely to shield the perpetrator from discovery,
thus increasing underreporting.

As a result, punishment by death may not result in more deterrence or more effective enforcement.

I will try to post again later with excerpts from the dissenting justices opinion.