The efforts of nearly a dozen US states to execute child rapists were derailed on Wednesday by a Supreme Court decision that incensed supporters of such punishment.
At least one state said it was not ready to give up.
“I think the people of Oklahoma have spoken loudly that this is one of the most heinous of crimes. We will certainly look at what options we have,” said Senator Jay Paul Gumm, a strong proponent of his state’s 2006 law subjecting those who sexually abuse children to the death penalty.
Five of the states have laws that explicitly permit such executions.
At issue before the high court was a Louisiana case involving Patrick Kennedy, who was sentenced to die for raping his eight-year-old stepdaughter in her bed in 1998, an assault so severe she required surgery.
In a 5-4 decision, the court ruled the death penalty a disproportionate punishment for raping children under the age of 12, despite the horrendous nature of such acts.
Justices made a similar ruling in 1977, when they said the death penalty was unconstitutional punishment for a Georgia man convicted of raping a teenager who was an adult under the law.
Louisiana’s law, passed in 1995, is the broadest in the US. It also makes first-time offenders eligible for the death penalty, unlike Texas, South Carolina, Oklahoma and Montana, which required at least one previous conviction for child rape. Following Wednesday’s ruling, all become unconstitutional.
Nationwide, only two men have been sentenced to death for sexually abusing children — both in Louisiana. The second case involves a man convicted of repeatedly raping a five-year-old girl.
Several states, including Missouri, Alabama and Colorado have been considering similar laws. Supporters there were incensed by Wednesday’s ruling.
“Anybody in the country who cares about children should be outraged that we have a Supreme Court that would issue a decision like this,” said Alabama Attorney General Troy King, who represented one of nine states that filed a friend-of-the-court brief supporting Louisiana in the Kennedy case on the grounds that child rape represented “manifest evil.”
Justices are “creating a situation where the country is a less safe place to grow up,” King said.
Republican Louisiana Governor Bobby Jindal said he, too, was outraged.
“The opinion reflects a clear abuse of judicial authority, trampling the constitutional authority of states to act through the legislative process,” Jindal said.
In South Carolina, Attorney General Henry McMaster, who pushed hard in 2006 to get lawmakers to approve such punishment, said states could ultimately fight Wednesday’s ruling by waiting for a change in the makeup of the Supreme Court or by getting legislatures to redo death penalty laws.
Legal experts were divided on the potential success of such tactics.
Douglas Berman, a professor at Ohio State University’s Moritz College of Law, said the justices’ ruling appears ironclad.
“In the absence of death, the death penalty is off the table,” he said. “Instead of a highly contextual and nuanced discussion ... the court asserted that states can only use the death penalty against rapists in the case of death.”
“It could have left open the possibility of revamping child rape laws — by age for example — but it did not,” he said.
Law professor Deborah Denno of Fordham University was not so sure.
“No case is necessarily definitive when you’re looking at specific language,” she said. “I don’t think this is airtight.”
It could be possible to argue for applying the death penalty against attackers who “intended to kill” their victims, but did not, she said. Or those who assault especially young children, such as toddlers, she said.
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