Catholic death penalty foe commends court decision in rapist's case

By Carol Zimmermann
Catholic News Service

WASHINGTON (CNS) -- A leading Catholic advocate against capital punishment commended the U.S. Supreme Court's 5-4 ruling June 25 barring the death penalty for anyone convicted of raping a child.

The decision said the death penalty was reserved for murder and crimes against the state such as treason, espionage and terrorism.

Although the opinion in Kennedy v. Louisiana did not deny the pain and suffering inflicted in childhood rape, the court found the death penalty was not a "proportionate penalty for the crime" and thus amounted to "cruel and unusual punishment" in violation of the Eighth Amendment.

In a June 25 e-mail, Frank McNeirney, national coordinator for Catholics Against Capital Punishment based in Bethesda, Md., told Catholic News Service that "the court would have made the system even more disproportionate and unfair" if it had extended "eligibility for execution to people who commit crimes that do not result in the loss of human life."

The court's decision struck down a 1995 Louisiana law that allows the death penalty for people convicted of raping children under the age of 12. The ruling will spare the lives of two Louisiana men -- the only people in the United States under a death penalty sentence for a crime that did not include homicide. They will receive life sentences without parole.

The case before the Supreme Court was the appeal of one of the Louisiana inmates, Patrick Kennedy, who was convicted and sentenced to death in 2003 for raping his 8-year-old stepdaughter. The Louisiana Supreme Court upheld Kennedy's conviction and rejected his challenge to the constitutionality of his sentence.

In a 1977 case, the court had prohibited capital punishment for rape; in that case, the 16-year-old victim was married and had the legal status of an adult.

In the 2008 decision, Justice Anthony M. Kennedy, writing for the majority, said there was "a distinction between intentional first-degree murder on the one hand and nonhomicide crimes against individual persons," even "devastating" crimes such as the rape of a child.

"The incongruity between the crime of child rape and the harshness of the death penalty poses risks of over-punishment and counsels against a constitutional ruling that the death penalty can be expanded to include this offense," Kennedy wrote.

He also noted that when the law "punishes by death, it risks its own sudden descent into brutality, transgressing the constitutional commitment to decency and restraint."

Kennedy was joined by Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer.

In a dissenting opinion, Justice Samuel Alito denounced the decision as too "sweeping." He was joined by Chief Justice John Roberts and Justices Antonin Scalia and Clarence Thomas.


Alito faulted the decision for banning the death penalty "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."

McNeirney, who founded Catholics Against Capital Punishment with his wife, Ellen, 16 years ago, noted that the court's decision "is to be commended."

But he also said it was "disheartening to see four of the five Catholic justices voting to expand the use of the death penalty in the face of Catholic Church teaching that such punishment is cruel and unnecessary in today's society." Kennedy is the fifth Catholic on the court.

McNeirney told CNS that even though "executions in the U.S. are now limited to those who commit murder" the death penalty system remains "a grotesque lottery," as one politician described it, since each year "only a tiny percentage of convicted murderers wind up receiving the ultimate punishment."

McNeirney said that if the court had found the execution of child rapists constitutional it would have "placed an unbelievably onerous and expensive burden on our criminal justice system" and "opened the floodgates" for state lawmakers to add dozens of other nonlethal crimes to the list of offenses punishable by death.

The decision was the court's second major ruling on capital punishment this term. In April the court upheld Kentucky's use of lethal injection as a constitutional method of execution in a 7-2 decision.

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