Death Penalty for Child Rape Unconstitutional?

by P.A. Madison on October 18th, 2007

Lawyers for Patrick Kennedy, a Louisiana man who received a death sentence for raping a child has petitioned the U.S. Supreme Court to have his case heard before the justices. Kennedy’s legal team wants the court to declare Louisiana’s law allowing the death penalty for child rape unconstitutional.

The petition asks the court to consider whether the Eighth Amendment’s Cruel and Unusual Punishment clause permits a state to impose the death penalty for child rape – a punishment usually reserved for those convicted of murder. If this is the case, Kennedy’s attorneys ask a second question: Does Louisiana’s capital rape statute violates the Eighth Amendment because it does not set clear guidelines for juries as to who is eligible for the death penalty?

There has not been an execution for rape in the United States since 1964, and no one has been executed for such a crime since the death penalty was reinstated in 1976.

Lawyers have petitioned the Supreme Court before (1997) over Louisiana’s child rape death penalty law. The court declined to hear the case, resulting in three of the justices – John Paul Stevens, Ruth Bader Ginsburg and Stephen Breyer – releasing a statement that indicated they had reservations about the law.

During the twentieth century, there were at least 14 States found to have had death penalties for the crime of rape: Alabama, Arkansas, Delaware, Georgia, Kentucky (if under age of 12), Louisiana, Maryland, Mississippi, Missouri, South Carolina, Tennessee (if under age of 18), Texas, Virginia, and West Virginia. There were also a number of State statutes that called for life imprisonment in lieu of death.

Whatever reservations these three justices may care to drum up, they cannot argue such laws are “unusual” in regards to punishment by death for rape.

The issue is not strictly confined to Louisiana as Texas recently joined six other states (Florida, Louisiana, Montana, Georgia, South Carolina and Oklahoma) with statutes allowing for the death penalty for the rape of a child.

So what does the Eighth Amendment under the United States Constitution have to do with State guidelines of capital punishment or even methods of execution? Amazingly, nothing at all.

Why do we find the words “cruel and unusual punishment” under the Eighth Amendment? The answer is simply because Congress was empowered to declare punishment for acts of treason, leading to the desire to have a precaution against mimicking England’s own shocking punishments for treason.

Blackstone described England’s punishment for treason as “very solemn and terrible.” How terrible? The guilty could first be hanged, to then be disemboweled, even if still alive. The head was then cut off and body carved up in four parts for the king to dispose. In some cases, one could be burned alive.

It should be noted the Eighth Amendment has nothing to do with torture but only with post criminal conviction punishment. Torture was never used for punishment but for obtaining confessions (witness against oneself) or information. The Fifth Amendment’s no person “shall be compelled (tortured) in any criminal case to be a witness against himself” addresses the use of torture for obtaining confessions or other false or true statements.

Many States adopted their own form of the U.S. Constitution’s Eighth Amendment because they too had their own laws for treason against the State. State courts and legislatures had since the beginning voided many kinds of punishments as a violation under the States own Eighth Amendment, whether dealing with cruel punishments or excessive fines.

Following the adoption of the Fourteenth Amendment, the court in Kemmler (136 U.S. 436) unanimously held the Eighth Amendment under the United States Constitution in no way restrained the States. There is a very good reason why this is so.

The Fourteenth Amendment is not about federal meddling in the administration of justice within any State, nor is it about forcing federal limitations or norms of justice upon the States. The Fourteenth Amendment is all about redress for the “willful and corrupt” (Bingham’s words) denial or unequal application of State laws in the administration of justice for life, liberty, and property by organic acts of the legislature.

One might protest by pointing out the Fourteenth’s first section primary author, John Bingham, proclaimed three years after its adoption that the first eight amendments were never a limitation upon the States until made so by the Fourteenth Amendment. Many conveniently ignore the fact that he also made clear he was only speaking of the privileges and immunities of United States citizens as distinguished from citizens of a State.

He also made clear that if the first eight amendments were to be applicable against the States, it was through the privileges and immunities of United States citizens – not due process.

The distinction between citizens of the United States, and citizens of a State was well known and understood in 1866, yet Mr. Bingham settled upon the language “citizens of the United States.” He later declared in January of 1871 (House Report No. 22) that the Fourteenth Amendment neither changed nor modified the relationship between citizens of a State, and citizens of the United States.

In other words, citizens of the States under the Fourteenth Amendment were left exclusively under the protection and laws of the States, and no jurisdiction over matters of administering State laws were surrendered. If this were to be the purpose of the amendment, then all the coercion in the world by radical Republicans would have lead to no more than four States at best ratifying such an amendment.

All Bingham did, as he explained in March of 1871, was imitate Article I, Section 10. Did Congress or the court ever use anything under Article I, Section 10 as a pretext for new expansive federal powers over the States? No because like the Fourteenth’s first section, merely imposed a limitation upon the States directly, that is, “a law unto itself.” It gave the federal judiciary no direct jurisdiction or legislative powers over State enactments that did not clearly touch upon any of the provisions prohibited to the States.

After all, Bingham did state over and over that the Fourteenth Amendment did not change anything in regards to existing rights belonging to the States or the citizens of a State. Citizens have an inviolable right to enact whatever laws they deem fit for their security, and to punish offenders of their laws.

What might constitute cruel and unusual punishment in the ordinary course of imprisoning convicts, or in executing them, only the political societies of the States can judge. The only thing that can be said the Fourteenth Amendment does indeed prohibit in regards to capital punishment – and indeed, any punishments for that matter – is whatever punishments that may be authorized, they must be equally applicable to all, i.e., no caste laws of punishment.

Whatever one might think in regards to the death penalty for rape under State statutes, one thing is certain: The Fourteenth Amendment does not give the federal judiciary any jurisdiction under any pretense to sit in judgment over the validity of any State enacted statute any more than Article I, Section 10 had. The only remote jurisdiction the court could claim under the Fourteenth Amendment is in the event of a “willful and corrupt disregard” for the States own laws of due process – or when some State court decides white defendants will be spared execution while blacks will face death (unequal administration of laws).

Until the Fourteenth Amendment is amended to allow for federal review of all State laws in terms of whether they are just and proper, meet federal judicial standards, or whether the law promotes some substantial state interest, the court is just kidding itself in unlawfully extending its jurisdiction where it has long been prohibited.


Feel free to share.

17 Responses | Leave a Comment
  1. Person says:

    @Steve well maybe the death penalty is barbaric but they should at least serve a life sentence with no parole. Why do they have the ability to ruin and untimately scar a child and get of with 5 years in prison and then parole. That is utterly stupid. They should serve life if not life 5o no 60 years and over.

  2. anson biggs says:

    We should be able to give a death sentence if someone is raped. Maybe in the 1900 there wasn’t as many physco’s, well no there are, and they nedd to be stopped.

  3. Anonymous says:

    In Reply to Jerome Thomas: we should be able to give a life sentence if a child is raped, in the 1900 there wasn’t as many physco’s in the world.They need to be stopped.

  4. greg smith says:

    Once again the supreme court has legislated from the bench. everything that is considered good is attacked with out mercy in the courts, from the boy scouts to christmas, but anything evil is upheld the courts call good evil and evil good. IT IS TIME FOR THE OVER THROW OF THE UNITED STATES GOVERMENT OUR GOVERMENT IS BROKE AND CANT BE FIXED BY ELECTION. A MILITARY COUP HAS TO BE INITIATED AND WHAT GENERAL HAS THE COURAGE TO DO THIS SO MANY AMERICANS WOULD FOLLOW HIM IF HE DID. IT IS UNBELIEVABLE THAT THIS GROUP OF PEOPE WOULD NOT EXECUTE A MAN THAT RAPES A TODLER

    I AM GOING TO QUOTE MARK 9:42 WHICH STATES BY GOD HIMSELF WHO WALKED AMONG US 2000 YRS AGO THAT IF ANY PERSON DEFILED OR SERIOUSLY HARMED A CHILD IT WOULD BE BETTER OF FOR THEM THAT A MILSTONE BE TIED AROUND HIS NECK AND CAST INTO THE SEA.. A CHILD IS CONSIDERED IN THE EYES OF GOD TO BE 12YRS OLD FOR A GIRL AND 13 FOR A BOY UNTIL THEY REACH THIS AGE THEY ARE BLAMELESS BEFORE THE THRONE OF GOD…….. THESE SUPREME COURT JUSTICES WHO RULED AGAINST THIS LITTLE DO THEY KNOW THEY HAVE SEALED THERE FAITH IN HELL. THIS LAW COULD HAVE BEEN A DETERENT TO KEEP THESE PEOPLE FROM HARMING OUR CHILDREN AND THEY DEFENDED NOT THE WEAK BUT THE CRIMINALS WHO WOULD COMMIT THIS HEINOUR CRIME A CRIME MORE HEINOUS THAN COLD BLOODED MURDER IN THE EYES OF GOD.. I CANT WAIT FOR JUDGEMENT DAY AND TO SEE ALL THESE ATTORNEYS AND JUDGES JUDGED THE SAME WAY THEY JUDGED. GAY RIGHTS , GAY MARRIAGES, ABORTION RIGHTS LET THEM ALL BURN IN HELL WITH THERE GOD SATAN

  5. Jerome Thomas says:

    In Reply to Jessica: To enlighten you, (respectfully); the problem is that the US Supreme Court just ruled that someone who rapes a child cannot be sentenced and put to death. Their opinion counts in the courts, yours doesn’t….. I see that as a problem.

  6. Eric from SLC says:

    I oppose the death penalty primarily because I believe the justice system has too many human flaws to allow a wholly irreversible sentence.

    That said, the Constitutional arguments that won in SCOTUS are ridiculous. The Court looked at state practices which could easily swing back the other way. It is utterly unpersuasive on how the meaning of Constitutional provisions can evolve over time, but only in one direction.

    This is a matter for legislators to work democratic policy decisions, accounting for perhaps good policy arguments such as the incentive of rapists to not murder (or torture?) victims, and the example of state violence.

  7. Rachel says:

    In Reply to Steve: The difference here between a techinal sex offense and what this law in Lousianna and other states are saying is a capital crime is that there is NO WAY to techically commit aggrevated sexaul assualt (which I believe is when there is full penetration, I get assualt and abuse filpped around) on a minor under the age of 13. The case in from of the US Supreme Court right now involves a man who so violently raped his 8 year old step daughter that she needed surgury. It’s been said that he called a carpet cleaning service before her called 911 to help her. Then told her to lie. I think he showed a claouse disregaurd for her life in this case and the fact he was lucjy enough not to kill her shouldn’t work in his favor.

  8. Steve says:

    In Reply to Jessica: I’ll be happy to enlighten you. If cutting someone’s hands off for stealing is effective, why don’t we do it, like some cultures STILL do? Because we know that it is not justice, and the punishment does not fit the crime. By allowing the death penalty for anything other than causing another death, we are starting down a slippery slope that you or someone you love may ultimately find themselves hurtling down. I’m certainly not defending child rapists – I was a victim myself. I’m trying to diffuse the absolute hysteria we as a society are approaching when it comes to any types of sex offense. If you had any idea of the actual percentage of people who have been, by legal definition, technically guilty of some type of sex offense in their lives, you might be much more careful when doling out the needle.

  9. Steve says:

    In Reply to Steve:

    I too was sexually victimized as a young child, but vehemently disagree with your arguments. I myself might not have survived my attack(s) had the offender(s) known they were facing the death penalty. There are two arguably valid reasons for taking a life in the name of “justice.” Retribution, and deterrence. Exactly which one does this fall under, Steve?

  10. latoya says:

    I do not believe in the death penalty

  11. Steve says:

    As a survivor of child rape and now a father myself I find this whole argument interesting. We argue about who has jurisdiction, the State or the Federal Government? I would simply ask those who so passionately fight for the rights of child rapists to use some of that well educated banter to fight for the rights of the children. Victim’s rights groups saying that implementing such a penalty would somehow “harm” more children infuriates me. Saying that such a penalty may cause rapists to kill rather than leave a witness?? Maybe we should lighten the penalty for theft so the criminals might give the money back?

    “We the people by the people”

    All in favor of ridding society of this despicable cancer say I…

  12. Jessica says:

    I am not sure what the problem is – please enlighten me. I think you should be put to death if you rape a child.

  13. Marc says:

    To ohwilleke: Funny the U.S. Court of Appeals for the D.C. Circuit recently referred to incorporation as a twentieth-century “debate.”

  14. I suspect the Court will use the Kennedy case to outlaw executions for the crime of rape, with Justices Scalia, Thomas and Alto dissenting!

    http://osi-speaks.blogspot.com/2008/01/scotus-to-decide-if-states-can-execute.html#links

  15. Brent Seward says:

    Finally a writer who recognizes the historical purpose behind the words “cruel and unusual punishment.” REFRESHING!

  16. Kevin Mack says:

    I’ll agree the case for incorporation is extremely weak and the court has missed the vital point in regards to citizens of a state and citizens of the united states.

    For the time being the court is stuck in park on incorporation, neither able to move forward or backwards to undo factually errorous 14th precedent.

  17. Larry says:

    I just love these educational posts by Madison!

Leave a Reply




You may edit your comment after being submitted.