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Lawmakers seek way around child-rapist ruling

Angry politicians vowed to keep writing laws that condemn child rapists to death, despite a Supreme Court decision saying such punishment is unconstitutional.
/ Source: The Associated Press

Angry politicians vowed to keep writing laws that condemn child rapists to death, despite a Supreme Court decision saying such punishment is unconstitutional.

"Anybody in the country who cares about children should be outraged that we have a Supreme Court that would issue a decision like this," said Alabama Attorney General Troy King, a Republican. The justices, he said, are "creating a situation where the country is a less safe place to grow up."

The court's 5-4 decision Wednesday derailed the efforts of nearly a dozen states supporting the right to kill those convicted of raping a child — and said execution was confined to attacks that take a life and to other crimes including treason and espionage.

At issue before the high court was a Louisiana case involving Patrick Kennedy, sentenced to die for raping his 8-year-old daughter in her bed, an assault so severe she required surgery.

In his majority opinion, Justice Anthony Kennedy wrote "the death penalty is not a proportional punishment for the rape of a child," despite the horrendous nature of the crime.

'Incredibly absurd'
Republican Louisiana Gov. Bobby Jindal called the ruling "incredibly absurd," "a clear abuse of judicial authority" and said officials will "evaluate ways to amend our statute to maintain death as a penalty for this horrific crime."

Oklahoma officials said they, too, weren't ready to give up. Officials will "certainly look at what options we have," state senator Jay Paul Gumm said. "I think the people of Oklahoma have spoken loudly that this is one of the most heinous of crimes."

Even White House hopefuls joined the fray. Republican John McCain called the ruling "an assault on law enforcement's efforts to punish these heinous felons for the most despicable crime." Democrat Barack Obama said there should be no blanket prohibition of the death penalty for the rape of children if states want to apply it in those cases.

Forty-four states prohibit the death penalty for any kind of rape, and at least four states besides Louisiana permit it for child rape — Montana, Oklahoma, South Carolina and Texas. There's disagreement over the status of a Georgia law permitting execution for child rape, although Justice Kennedy said in his ruling that it was still in effect.

Following the ruling, all become unconstitutional.

In Texas, Republican Lt. Gov. David Dewhurst said Wednesday that most Texans believe the death penalty is "an appropriate form of punishment for repeat child molesters. Our top priority remains protecting our most precious resource — our children."

But the Texas Association Against Sexual Assault, a nonprofit victim advocacy group representing 80 rape crisis centers, applauded the ruling.

"Most child sexual abuse victims are abused by a family member or close family friend," the group said in a statement. "The reality is that child victims and their families don't want to be responsible for sending a grandparent, cousin or long time family friend to death row."

Nationwide, only two men have been sentenced to death for sexually abusing children — both in Louisiana. The second case involves a man convicted of repeatedly raping a 5-year-old girl. Both men will get new sentences.

Several states, including Missouri, Alabama and Colorado had been considering similar laws.

Waiting game?
In South Carolina, Republican Attorney General Henry McMaster said states could ultimately fight Wednesday's ruling by waiting for a change in the makeup of the Supreme Court, or by getting legislatures to redo death penalty laws.

Legal experts were divided on the potential success of such tactics.

According to Douglas Berman, a law professor at Ohio State University, the justices' ruling appears ironclad. "In the absence of death, the death penalty is off the table," he said. The court, he said, "could have left open the possibility of revamping child rape laws, by age for example, but it did not."

Law professor Deborah Denno of Fordham University wasn't so sure. It could be possible to argue for the application of the death penalty against attackers who "intended to kill" their victims, but didn't, she said. Or those who assault especially young children, such as toddlers.