Capital punishment scope narrows, IU experts say

The U.S. Supreme Court recently issued a ruling that child rape is a crime that does not merit the death penalty, and IU experts say the ruling narrows the scope of capital punishment. 

In the recent Supreme Court case of Kennedy v. Louisiana, the Court denied re-hearing the case involving the death penalty for a child rapist. On Oct. 1, the Supreme Court amended but held its initial decision on the case. Indiana is among the more than 40 states that do not have laws extending the death penalty to child rape cases.

Jody Madeira, associate professor at the IU School of Law, said this lack of law might have played a role in the Court’s decision.

“There are two open questions going into the Supreme Court’s hearing of Kennedy v. Louisiana,” Madeira said. “In its decision, they basically said there is not enough of a nation-wide consensus to authorize the death penalty for child rape. The majority of states that have the death penalty do not have books authorizing execution for child rapists in their state statutes.”

In 1998, defendant Patrick Kennedy was convicted of raping his 8-year-old stepdaughter.

Initially, Kennedy’s lawyers appealed to the Louisiana Supreme Court, which struck down the appeal, ruling the death penalty was a suitable punishment in this case. The U.S. Supreme Court did not agree.

The Court not only considers laws on the books, but also public consensus, she said.
“Public ire not withstanding is not enough to demonstrate public consensus,” Madeira said. “People are angry about the decision.”

Many people, such as current law school student John Keele, said they agree with the court’s decision because they believe capital punishment is an unconstitutional act.

“I felt the decision was correct out of the general principle I have that the death penalty is wrong,” Keele said. “I just object to the death penalty in general.”

Despite some outrage with the Court’s decision, Madeira said there are some positive aspects of the ruling. She said the court noted in the original opinion that if capital punishment were to be upheld, rapists might have less incentive to keep the child victims alive.

“The other thing is that if family members know that a relative is molesting a child they might not turn their relative in for fear that they will be setting them up for the death penalty,” Madeira said. “It facilitates reporting as well.”

A case like this one would take consensus across the nation for the Supreme Court to revisit the issue and likely new judges to overturn the decision.

For Michael Grossberg, a professor of history and adjunct professor of law at IU, the court’s ruling was not a surprise.

“It seems to me the basic message of the case is that the courts have become more and more insistent that the death penalty only be used in cases that are clearly cruel that involved murder,” Grossberg  said. “This case represented a case to get beyond that by including child rape and the courts said no to that. It strikes me as part of a trend in the court, to narrow the kinds of crimes and the kinds of individuals subject to the death penalty. The decision of the court would suggest that if a law like that were passed in Indiana it wouldn’t meet constitutional muster.”

And even if the court had upheld the Louisiana Supreme Court’s decision, the death penalty might not have affected the numbers of criminals or victims.

“Child rapists aren’t going to be deterred by punishment,” Keele said. “For child rapists, I don’t think they are going to take punishment into account.”