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"We have the abiding conviction that the death penalty... is an excessive penalty for the rapist who, as such, does not take human life."

By Ann Althouse

So wrote Justice White in Coker v. Georgia, and this week, the Supreme Court takes up the question whether the death penalty could nevertheless be constitutional when the victim is a child.

Those facts alone are a powerful argument that executing someone for rape would violate the Eighth Amendment prohibition against "cruel and unusual punishment," argue lawyers for Louisiana death row inmate Patrick Kennedy. The 43-year-old Kennedy was convicted of raping his 8-year-old stepdaughter in 1998 in an assault so brutal that the girl required surgery.

Coker was decided in 1977, just before Americans began to focus very seriously on how harmful rape really is, and White's recounting of the facts reflects the culture of that earlier era:

While serving various sentences for murder, rape, kidnaping, and aggravated assault, petitioner escaped from the Ware Correctional Institution near Waycross, Ga. on September 2, 1974. At approximately 11 o'clock that night, petitioner entered the house of Allen and Elnita Carver through an unlocked kitchen door. Threatening the couple with a "board," he tied up Mr. Carver in the bathroom, obtained a knife from the kitchen, and took Mr. Carver's money and the keys to the family car. Brandishing the knife and saying "you know what's going to happen to you if you try anything, don't you," Coker then raped Mrs. Carver. Soon thereafter, petitioner drove away in the Carver car, taking Mrs. Carver with him. Mr. Carver, freeing himself, notified the police; and not long thereafter petitioner was apprehended. Mrs. Carver was unharmed.

Mrs. Carver was unharmed. It's hard to imagine any American judge today ending that paragraph with that sentence.

It took Chief Justice Burger in dissent (joined by Justice Rehnquist) to tell us that Mrs. Carver, whom Justice White called an "adult," was only 16.

Full post as published by Althouse on April 14, 2008 (boomark / email).