Death for child rape?

What happened

The U.S. Supreme Court this week will hear arguments in a Louisiana case that could determine whether the death penalty can be imposed against a person who rapes—but doesn’t kill—a child. The court has in recent years invoked society’s “evolving standards of decency” to remove juvenile and mentally retarded killers from death row, but prosecutors in the case of a man, Patrick Kennedy, convicted of raping his 8-year-old stepdaughter say child rape is such a violation of the same social mores that it justifies expanding, not further limiting, the death penalty. (The Washington Post, free registration).

What the commentators said

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The justices could use this case to “rewrite” the central rule on the death penalty, said James Oliphant in the Chicago Tribune. For decades, “American law has mostly drawn a line when it comes to the death penalty: Only death warranted death.” If the justices say execution can be used in these cases, they’ll open the door to the possibility of new capital crimes.

That hardly seems likely, said Andrew Cohen in CBSNews.com. “If the Supreme Court has made anything clear over the past six years, anything at all, it is that a majority of the Justices are more receptive to restrictions on capital punishment than they are to expansion of it.” In order for Louisiana prosecutors to win this case, they’ll have to reverse an “undeniable trend.”

“Kennedy’s lawyers are right about the broad American distaste for executing nonmurderers,” said Dahlia Lithwick in Slate, but “Louisiana is also right that the trend is shifting toward expanding the types of crimes eligible for capital punishment.” Americans generally worry that the death penalty is used unfairly, but want the option of capital punishment as long as it’s used sparingly. That leaves the high court with the “monumental challenge” of “distilling all of these trends and counter-trends” and determining what the “emerging ‘national consensus‚’” really is on capital punishment.