Kennedy's brief for the child rapist

Washington Post:

In a 5 to 4 decision, the court struck down a Louisiana law that had authorized the death penalty for anyone who rapes a child under the age of 12. Of 3,300 inmates on death row across the country, only two face capital punishment for a crime other than murder. Both were convicted under Louisiana's law, the broadest in the land. There has not been an execution for rape in the United States since 1964.

Justice Anthony M. Kennedy joined the court's more liberal members in continuing the court's trend of narrowing the number of criminals eligible for death. He wrote that the harm caused a child who is raped is "grave,'' but "cannot be quantified in the same way as death of the victim.''

...

Alito denounced the court's "sweeping conclusion'' that the death penalty is inappropriate "no matter how young the child, no matter how many times the child is raped, no matter how many children the perpetrator rapes, no matter how sadistic the crime, no matter how much physical or psychological trauma is inflicted and no matter how heinous the perpetrator's criminal record may be.''

He added: "It is the judgment of the Louisiana lawmakers and those in an increasing number of other states that these harms justify the death penalty. The court provides no cogent explanation why this legislative judgment should be overridden.''

...

This must be the Ted Kennedy American he envisioned when he viciously attacked Robert Bork to defeat his nomination that led to Anthony Kennedy's selection. In Ted Kennedy's American Child rapist escape the death penalty. In Ted Kennedy's America terrorist caught on the battle field get constitutional rights. Robert Bork's America looks much better today.

There is one interesting argument in favor of this decision. It suggest that the rapist will not kill the child because he fears the death penalty. That argument assumes that the death penalty is a deterrent, which I think it is. But if it is a deterrent for killing why isn't it one for raping a kid?

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