updated 4/14/2008 6:54:59 PM ET 2008-04-14T22:54:59

When the news broke last month that a janitor had been arrested and accused of raping boys in the bathroom at an elementary school, the issue of justice and retribution became the talk around dinner tables and baseball fields.

Castrate him, some said. No, let the other inmates deal with him. No, execute him.

Castration and jailhouse vigilantism are out of the question, but putting a child rapist to death is within the bounds of Louisiana law.

For how much longer?

That's a question the U.S. Supreme Court takes up Wednesday when it hears arguments on whether a state can impose the death penalty for the rape of a child, or whether that would amount to cruel and unusual punishment in violation of the Constitution.

A question of justice
Supporters of Louisiana's law argue that child rape is so evil and so utterly traumatizing that justice cries out for death. But others warn that the law will further traumatize youngsters and make rapists more likely to kill their victims.

In 1977, the Supreme Court said states cannot execute anyone for the rape of an adult. But the high court did not address the rape of a child.

The last time someone in the U.S. was executed for something other than murder was in 1964, when a man went to the electric chair in Alabama for robbery. That same year, a man in Missouri went to the gas chamber in what was the last time someone in this country was put to death for rape.

Louisiana is the only state with someone on death row for rape of an adult or child. In fact, it has two people awaiting execution for child rape. At least five other states — Georgia, Montana, Oklahoma, South Carolina and Texas — have similar laws.

"These are the only two men on any death row in any Western democracy for this offense," said Billy Sothern, a lawyer with the Capital Appeals Project, a nonprofit law firm that represents the Louisiana man at the center of the Supreme Court case, Patrick Kennedy.

Kennedy, a 43-year-old man with an IQ of 70, was convicted and sentenced to death for raping his 8-year-old stepdaughter in 1998 in Harvey, a New Orleans suburb.

Support for the Louisiana law
The Louisiana law — which applies to anyone found guilty of aggravated rape of a child 12 or younger — breezed through the state Legislature in 1995; members got sidetracked only over whether to castrate child rapists.

"That's one of my proudest pieces of legislation," said former state Rep. Pete Schneider, a Slidell brick manufacturer and Republican.

The other man on death row in Louisiana for child rape is Richard Davis, convicted of repeatedly attacking a 5-year-old girl he looked after with his girlfriend in 2004 and 2005. The man who prosecuted him, Brady O'Callaghan, said child rape deserves the death penalty.

"It is so evil. There is no justification for it," he said. "This isn't a heat-of-passion killing. It's not about money."

Opponents, including the National Association of Social Workers and the National Alliance to End Sexual Violence, warn that the prospect of the death penalty could give child rapists a powerful incentive to kill their victims. They might figure they have nothing to lose by killing the lone witness.

Also, child advocates warn that children, in many cases, are raped by people they know, and executing a relative could traumatize a youngster. Also, the law might make it harder to prosecute such cases by making children afraid to speak up for fear of what might happen to a relative, said Dr. Scott Benton, a pediatric forensic physician.

The debate has flared anew in Slidell, where 41-year-old janitor Dino Jay Schwertz was accused last month of child rape. Police say he confessed to the crimes.

His voice rising over the clang of baseball bats and clapping from the crowd at an after-school game, mortgage-company loan officer Cedric Bayone said he might support the death penalty in a child rape case.

"We've got to send a message to all these sex offenders: We're not playing when it comes to our children," he said.

But Penny Robertson, a mother of three, opposes the death penalty for a child rapist: "He's going to get it either way it goes. God's going to get him in the end. Death is the easy out for him, and I don't think he deserves an easy out."

Copyright 2008 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.


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