I referenced a case where a person was sentenced to death for raping a child (under 12) in my book review segment a couple posts back. The ruling is discussed, at least the federal constitutional aspects, here (h/t Wikipedia). [One view of the facts of the case itself, including some matters of concern on simple fairness grounds, can be found here.] The law review article focuses on international standards of decency, citing an interesting sound law review article by Justice Blackmun (1994, his swan song, involving a few dissents against the death penalty, including one concerning execution by hanging).
The law itself was upheld in court in a state ruling before the case involved was completed, leading the Supremes to refuse cert. (Bethley v. Louisiana; three justices noted separately that this is why they did it), the case itself being eventually disposed of by plea. Still, the state ruling is rather interesting in how it avoids Coker v. Georgia (rape isn't death, so death penalty isn't warranted ... written by that abolitionist Justice White) and a later case citing the same principle in a robbery case. "Interesting" might not be the best word. How about counting the number of times the ruling said "adult" woman? Or, counting heads of dissenting justices, who over the years were more open to a broader rule, including in Coker itself?
Not that the Supremes don't use the same policy, if not necessarily quite as blatantly, when it suits them. But, come on ... no wonder a couple judges (briefly) concurred separately. Now, an argument can be made that raping a young child is so different from raping a woman that the death penalty might be warranted in the former case. And, Coker was specifically about adult women -- opinion writing is all about not taking certain rulings as far as they can go in order to get to your desired destination. But, this was a bit blatant. Still, would the Supremes take the case and overrule the lower court?
I guess so, even if one can differentiate killings by the mentally retarded and minors from non-lethal crimes themselves.* BTW, the name of the defendant here is Kennedy ... the same name as the author of Roper, which banned execution of minors. Mr. Swing.
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* One news article on the case noted:
The federal government has several nonmurder crimes punishable by death, including espionage, drug trafficking, and kidnapping, and it is becoming much more aggressive in pursuing this sentence. But federal juries remain largely unconvinced that capital punishment should be used for anything but murder and are handing down life sentences instead, death-penalty experts say.
Of some interest, the last four executions [1956-1963] by the federal government, before Timothy McVeigh, were for rape and kidnapping.