Capital Punishment for Rape

Our organization believes this to be an appropriate sanction, see our fourth guiding criminal justice principle.

The Supreme Court recently disagreed, and an article in the Washington Post, by Charles Lane—whose book on capital punishment was commented on in a previous post—speculates on that decision after reading Jaycee Lee Dugard’s book.

An excerpt from the Post article.

“A Stolen Life , Jaycee Lee Dugard’s harrowing memoir of sexual torture and confinement at the hands of Phillip Garrido, has hit the top of Amazon’s best-seller list. I read it, astonished at her courage and her eloquence — and disgusted at the crimes Garrido, on parole for a previous rape, committed against Dugard for years, starting when she was 11.

“I also wondered how history might have been different if Dugard had escaped from her 18-year hell before the Supreme Court’s 2008 decision in Kennedy v. Louisiana, instead of a year after it. This was the case in which the court voted 5-4 to ban the death penalty for raping a child. No future Phillip Garrido need ever fear execution, though many who read Dugard’s book will agree with me that he would richly deserve it.

“At the time, the majority opinion by Justice Anthony M. Kennedy struck me as a mixed salad of moralizing and debatable assertions. Post-Dugard, it’s even less persuasive.

“In previous cases, the Supreme Court banned certain applications of capital punishment partly because a large majority of states had abandoned them, suggesting a “national consensus.” For example, when the court struck down the death penalty for the rape of an adult in 1977 it cited the fact that only Georgia still allowed it.

“In Kennedy v. Louisiana, Justice Kennedy (no relation, obviously) claimed a “national consensus” against the death penalty for raping a child, because only six states allowed it. But they were all post-1995 statutes; under the court’s precedents, the one-way direction of the recent trend argued for their constitutionality.”