(CBS) 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. Over and over again, in cases of both form and substance, the Court has narrowed the ways in which the government may execute its condemned.
First, in 2002, the Court declared that there may be no capital punishment for mentally retarded criminals. Then, a few years ago, the Justices declared there may be no capital punishment for murderers who committed their crimes before they were 18-years-old. Meantime, the Court has repeatedly chastised lower court judges for dubious (read: absurdly narrow) interpretations in capital cases. Oh yeah, and there is in place, at the moment, an effective national stay on executions pending the Court's review of lethal injection procedures.
Into the teeth of this undeniable trend comes a case this week out of Louisiana which asks whether the Constitution permits capital punishment for people convicted of child rape. It presents the Justices with a different sort of dynamic on capital punishment. Instead of being asked to rein in a growing practice - like sentencing juvenile offenders to death - the Court is being asked to re-zone for business an area of death penalty law that has lain dormant for decades.
A handful of states, including Louisiana, have capital child rape statutes on their books despite a 1977 Supreme Court ruling that declared the death penalty a "disproportionate" penalty for rape. Prosecutors in those states, mindful of the 1977 precedent, generally haven't pushed for death sentences in rape cases. No one has been executed for a non capital crime in a generation. Of the thousands of men and women on death row in this country, only two, both in Louisiana, are there for rape.
The case the Justices hear on Wednesday will determine not just whether those two men stay on death row, but whether perhaps hundreds more join them for non-capital crimes. It will help us know whether the recent trend on the Court away from willy-nilly expansion of death penalty scenarios persists for real under the regime of Chief Justice John G. Roberts, Jr. and his fellow Bush II appointee, Justice Samuel A. Alito, Jr. And it will help us know what's likely to come next in the ceaseless war over what to do with our most vicious criminals.
The case floats in the eddy caused by a cross-current of thought over capital punishment in the 21st Century. One current runs through the shrillness of Nancy Grace's voice and is evident in the promulgation of "Megan's Laws" and the rise of the power of victims' rights groups looking to enhance sentencing options for juries in violent-crime cases. The other current runs through Justice Anthony M. Kennedy and, before him, Justice Sandra Day O'Connor, and is evident in the promulgation of DNA testing for death row inmates and the up-tick in resistance by jurors to impose a death sentence absent the most brutal of crime and the clearest of proof.
This whirlwind is known to the Justices as "evolving standards of decency," which is the language contained in an important legal test to which the Court will look in deciding the case. Are America's "evolving standards" taking her toward or away from a standard that would go beyond the Old Testament's "eye-for-an-eye" principle of retribution - to kill when the crime is not murder? Louisiana says so; Its attorneys argue that pending capital rape legislation waiting on deck in state houses around the country is proof that the "evolution" is in their favor.
Moreover, Louisiana argues, the Justices do not necessarily have to upset their 1977 precedent to reach the right result because that old case involved adult rape, while the case of Patrick Kennedy, the present case, involves his horrific rape of his 8-year-old stepdaughter. Even if the Constitution does not permit capital punishment where an adult rapes an adult, the state argues, the sliding scale of "decency" suggests that the rape of a child warrants a death sentence. It's the same argument you hear in the evenings on the cable channels all the time.
It's hard to argue in favor of a child rapist so the other argument in the case focuses more on the value and effect of expanding the death penalty to non-capital crimes. There is more of a risk of faulty convictions, say DNA experts, because children are necessarily the best witnesses to the crime and yet generally aren't as reliable in their testimony as adult witnesses. Child rape would be reported less, other folks say, if the children knew that the perpetrator - often a family member - will be executed for the crime.
And about that "national consensus?" Patrick Kennedy's lawyers point to the 44 states which have chosen not to make rape a capital crime as proof that the nation isn't roiling with frustration to expand the death penalty to include rape cases. Add the shoddy state of Louisiana's ability to pay for decent capital defense attorneys - talk about your national trend - and Kennedy's attorneys say this is the wrong time and the wrong place to put more people on death row.
Speaking of Kennedys, it will be Justice Kennedy who probably casts the fifth vote, one way or the other. And if past is prologue here, the vote will be against capital punishment for child rape, just one more sign that "evolving standards" of decency in America haven't yet evolved backward to a time that most of the rest of Western civilization left long ago.
Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.
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