Happy Sunday!  This post is going to a really dark place. I’m not going to get graphic, but be forewarned: the question before the Courts in Kennedy v. Louisiana is whether the death penalty constitutes cruel and unusual punishment for a child rapist.  If you read the Court’s decision, it does get into the evidence, but just trust me here: evidence showed Patrick Kennedy had violently raped his eight-year-old stepdaughter.

World map showing countries with capital punishment for drugs

Louisiana state statue made the death penalty an allowable punishment for rape of a child under twelve years old, and Patrick Kennedy was sentenced to death. He appealed to the Supreme Court, arguing that the death penalty was cruel and unusual punishment in the case of crimes other than murder or a crime against society as a whole, like treason.  The Court agreed.  Patrick Kennedy, monster, was not executed by the State of Louisiana.

The opinion of the Court was issued by Justice Anthony Kennedy.  The Court’s reasoning was two-pronged.

First, the court looked at “public standards of decency” as evidenced by state statute regarding the imposition of capital punishment in child rape cases.  The court concluded from this statute that the current moral consensus was that the death penalty was not an appropriate punishment for rape of a young child.

Second, the court reasoned that in cases of crimes against individuals, capital punishment ought to be reserved for crimes wherein an individual’s life is taken.  The opinion states that homicides are unique in the degree of depravity and in the fact that the victim will never be able to recover to any extent.

The decision was definitely contentious. Justice Alito wrote the dissent in this 5-4 decision.  The four dissenting judges believed that the majority opinion was wrong on both prongs of their rationale.

First, the dissenting judges believed that the reason that state statute did not more often provide for the imposition of the death penalty in child rape cases was not that there was a public consensus that the death penalty was cruel and unusual in these cases.  Rather, the dissenting opinion indicated that many state legislatures believed that the Supreme Court had previously indicated their intent to limit capital punishment in non-homicide crimes when they ruled that the death penalty was inappropriate in the case of the rape of an adult woman.

Secondly, the dissent indicated that the depravity of homicides was not unique, using the contrast of a homicide in the context of a failed robbery as opposed to the torture and rape of multiple children to illustrate their point.  The dissent also indicated that since irreparable harm is often done to the rape victim, especially the child victim of rape, the idea that one can truly recover from that action might not be true.

​Moreover, as the majority mentioned that crimes against society, such as treason or drug kingpin activity, are eligible for the death penalty, the dissent indicated that the damage done to a child victim of rape often has societal implications as well, arising from the increased rate of psychological issues and criminal behavior among adult victims of child rape.

Okay, so nobody is more disgusted by the death penalty than I am.  I have protested and gone to prayer vigils and signed and circulated petitions. But I have abundant sympathy for anyone who wants Patrick Kennedy eradicated.  I really get why he’s got to go.  I’m right there with the dissent when they say that most people are far more sympathetic to executing Patrick Kennedy than to executing some young man who shot someone as part of a failed robbery.

I think most of us are going to react that way.  After thinking about it, I believe there are a couple of reasons for this.  I think the permanent damage Kennedy did to his step-daughter’s body and soul might be just as wicked as murder, maybe even more so.  Also, the violence is so wanton and inscrutable that I cannot think of Kennedy as anything other than the thing that goes bump in the night.  I don’t know, but maybe you all have some insight.

I also think that the Court’s position that murder is the worst outcome possible might be a little nihilistic, but maybe I’m overreading that.

There’s a lot to talk about here so hopefully we can continue the conversation in the comments!