Painful but wise

The Supreme Court took a welcome step when it recently invalidated a Louisiana law permitting the death penalty in cases of child rape. These are, to be sure, horrendous crimes that must be severely punished. But the death penalty is itself horrendous, and a measure that looks more problematic the more it is scrutinized. The high court has taken note, choosing in recent years to limit rather than expand the death penalty's application.

The case before the court arose from the 2003 conviction of a Louisiana man, Patrick Kennedy, for raping his 8-year-old stepdaughter. He and another Louisiana resident were the only people in the country facing capital punishment for child rape.

No one has been executed anywhere in the United States for a non-lethal crime since 1964. (That year, one man was put to death for rape and another for robbery.) The majority opinion, coincidentally written by the justice who shares the petitioner's surname, rightly found this hiatus evidence of changing standards. Justice Anthony M. Kennedy also noted that only a few states permit the death penalty for child rape, a sign that it is widely seen as a disproportionate response. Increasingly, the nation rejects executions for all crimes that do not end in death.

The 5-to-4 decision invalidates Louisiana's law, as well as child-rape statutes in Montana, Oklahoma, South Carolina and Texas. Apparently overlooked in the arguments was a recent revision to the Uniform Code of Military Justice, which permits the death penalty for child rape by military personnel. As a result, a petition to reopen the case could be granted, although it seems unlikely. Left intact is the death penalty for murder, as well as for such crimes against the state as treason.

The child-rape decision now joins a series narrowing the death penalty's scope. Within the past few years, other rulings barred its use against juveniles and mentally retarded people. The prohibition is especially welcome in the case of child rape. For one thing, children's testimony can be unreliable. It may easily be distorted by fear or imagination, or manipulated by adults. But also, child rapes often occur within a family. Knowing that a parent or other relative could be executed may frighten a child into silence, and continued victimization. Other family members might collude in shielding the offender.

The high court's decision in no way minimizes the seriousness of child rape. It does, however, acknowledge the unique character of the offense, and point toward potentially better responses. At the same time, it newly underscores the shortcomings of the death penalty.

(Distributed by Scripps Howard News Service, www.scrippsnews.com.)