Trend It, Don’t End It

Tracking the inscrutable social consensus on capital punishment for rapists.

This week, the U.S. Supreme Court will hear a case about whether—for the first time in decades—a criminal can be executed for a crime that isn’t murder. Patrick Kennedy was convicted in 2004 for the rape of a child, his 8-year-old stepdaughter, and the state of Louisiana contends that his crime is tantamount to murder and worthy of death. Nobody in this country has actually been executed for anything other than murder since 1964, although five states, including Louisiana, have laws permitting capital punishment for the rape of young children. Several others are contemplating broadening their laws to do the same. The court must determine, in Kennedy v. Louisiana,whether the Eighth Amendment’s prohibition on cruel and unusual punishment bars the execution of someone who didn’t commit a murder but did violate a young child.

Kennedy is somewhat confounded by the quiet “moratorium” on executions the United States is experiencing, while the high court mulls another case. That one tests the constitutionality of the lethal injection procedures used in Kentucky and all but one of the 38 states permitting capital punishment. The court will decide the lethal-injection question this spring. But, in the meantime, there’s been a pause in capital punishment since last September: a good opportunity to reflect on what life would be like without it and to take the public temperature on the death penalty in general.

Capital punishment in America has been in a slow—repeat, slow—decline for years. According to the Death Penalty Information Center, which compiles statistics on capital punishment nationally, the number of executions has dropped steadily since 1998. Even before the 2007 moratorium took effect, the execution numbers had hit a 10-year low of 53 in 2006. American confidence in the death penalty has also dipped slightly: A Gallup poll taken in 2006 showed that while two-thirds of Americans endorsed capital punishment for murderers, given the choice between the death penalty and a life sentence without parole, slightly more preferred life in prison for the first time in decades.

This dip has been variously attributed to the reported 127 death-row exonerations now logged by DPIC (though death penalty supporters strongly dispute that statistic), as well as popular books by the likes of John Grisham and pervasive evidence that racism still taints the capital sentencing system. Still, public opinion on the death penalty remains in favor of it—at least for murder. And while the number of states imposing or contemplating moratoriums on the death penalty grows, many seem bent on mending—not ending—the capital system with cleaner execution protocols and higher-quality capital defense.

All of the statistics, polls, and trends I’ve just cited would be utterly irrelevant to any legal discussion of whether a child rapist can be executed, were it not for the odd constitutional test that weighs “cruel and unusual” punishment against “evolving standards of decency.” This is an exercise in molar-grinding frustration for members of the Supreme Court devoted to adhering to the Constitution’s original text. When the Supreme Court ended the death penalty for mentally retarded offenders in 2002 and again for those who were minors at the time of their crimes in 2005, it did so via an elaborate interpretive dance that required putting one finger on the pulse of foreign courts and the other to the wind of American public opinion. For those of us who are not big fans of public hangings on the Pubclicke Square, the notion that standards of unusual cruelty can “evolve” has its appeal. But the new fight over executing child rapists reveals that attempts to measure the shifting winds of public opinion for some ephemeral “national consensus” often says more about which justice is doing the measuring than whatever it is that’s being measured.

The Supreme Court tackled the death penalty with regard to the rape of a 16-year-old in 1977, in Coker v. Georgia, and prohibited capital punishment for the rape of an “adult.” The majority found that “the death penalty, which is unique in its severity, is an excessive penalty for the rapist who, as such, does not take human life.” Coker has since stood for the general principle that the death penalty is unavailable for nonmurder crimes, no matter how heinous. But Louisiana contends that child rape is different from adult rape, and its Supreme Court, in upholding the death penalty for Kennedy, wrote that “if the court is going to exercise its independent judgment to validate the death penalty for any non-homicide crime, it is going to be child rape.”

Kennedy’s lawyers measure the national discomfort with executing child rapists by counting to two: the number of people on death row for nonhomicide offenses. They also count to zero: the number of criminals executed for a rape since 1964. For its part, the state of Louisiana argues in its brief that public sentiment is tilting its way: “[S]ocietal awareness” and “outrage” over the sexual violation of children is rising, and the enactment of “Megan’s laws” reflects a punitive new approach to child rapists. Louisiana also points out that “the rape of a child under twelve is a crime like no other,” and that the physical and psychological effects of child rape are devastating. It also engages in some counting, i.e., the number of state legislatures trending toward making certain nonhomicide offenses a capital crime: Thirty-eight percent of death penalty states now punish some nonhomicide crimes with the death penalty.

International jurists and social scientists have also weighed in. A friend-of-the-court brief on behalf of Kennedy from British law scholars and former law lords includes citations to the Moroccan and Nigerian penal codes—a tactic guaranteed to send several justices into near-irreversible clinical despair. Another brief, from the National Association of Social Workers, warns that if child rape becomes a capital crime, victims will be less likely to report abuse, and rapists more likely to kill them. Several other states write in support of Louisiana, urging the court not to meddle with the independent state legislatures. Which leaves the high court in the unenviable position of having to measure whether the generalized public support for capital punishment may be canceled out by the slight recent decline in that support, which must in turn be weighed against efforts in some states to execute a broader range of criminals. All of which should somehow be tested against whatever the foreign courts might think.

Depending on how you look at it, and at which level of generality you elect to start counting, we are witnessing either a burgeoning new trend for executing rapists—or the last gasps of capital punishment.

The problem with measuring “evolving standards of decency” is that they tend to evolve and devolve in multiple directions at the same time. Patrick Kennedy’s lawyers are right about the broad American distaste for executing nonmurderers. Louisiana is also right that the trend is shifting toward expanding the types of crimes eligible for capital punishment. Americans generally support the death penalty but still worry it’s applied unfairly and now seem to increasingly favor life without parole. They still want the option of capital punishment but apparently wish to exercise it a few dozen times per year only. For the high court, it’s a monumental challenge: distilling all of these trends and counter-trends into some broad, workable constitutional rule, a rule that somehow reflects the emerging “national consensus” that we may like the idea of capital punishment far more than the reality of it.

A version of this piece appears in this week’s Newsweek.