Yes, I agree with this decision, and the court was right to hold that capital punishment or capital punishment cannot be applied to the case of rape of minors for various reasons which I will set out in the subsequent sections of this paper. The law on the capital punishment in the US is found in the individual criminal codes of each state, but the jurisprudence of the death penalty has largely been shaped by the US Supreme Court. The law in this area was enunciated by the same court when it made it clear in Coker v Georgia (1977), that capital punishment for rape is a violation of the Eighth Amendment to the US Constitution. Since then, most states have had to make changes to their respective criminal laws to conform to this decision. Earlier on, the Supreme Court had called for consistency in death penalty application when it decides Furman v Georgia in 1972. In most of the subsequent cases that came before the court, the central legal question or issue for determination has consistently been whether it is a cruel, unusual and inhuman punishment to sentence an accused to death. This culminated in the present case of Kennedy v Louisiana (2008) in which the court has held that since rape does not result in the victim’s death, the death penalty is not the appropriate sentence. The court had also extended this line of reasoning to cases involving mentally retarded defendants when it held in Atkins v Virginia (2002), that the mentally challenged are not to be executed due to lack of retributive or deterrent effect.
Firstly, I think this decision is right because it reflects the “evolving standards of decency” approach to capital punishment first coined in Trop v Dulles (1958) by Earl Warren, the then CJ. Though it may not reflect the view of what everybody in the American society thinks is the right thing to do, so long as reasonable men and women would accept it, it is not right to sentence one to death where they have not killed. For, to do otherwise would be grossly disproportionate, unjust and unfair. Death penalty historically emerged from the concept of “an eye for an eye”; meaning that one who brutally took away another person’s life without a justifiable reason or defense must also be executed or killed to deter others. However, as society has grown and changed over the years, it is no considered fit to kill an individual for having killed another, let alone raping their victim. Hence, just as the society and its view on various issues have not remained constant, so should the judicial opinion when it comes to sentencing in capital cases. The US Supreme Court has shown the same evolutionary standards with regards to the prohibition on the execution of juveniles and individuals with intellectual disabilities. The part on proportionality has been echoed by the same court in Gregg v Georgia (1976) when it held that any penalty must never be excessive in the sense of inflicting unnecessary pain that is not proportionate to the severity of the crime committed.
Moreover, as Grant (2012) argues, sentencing those who have committed otherwise heinous crimes like rape to death would not serve the primary purposes of the criminal law which are to rehabilitate and to deter. According to this author, evidence shows that capital punishment has never been a very effective way of stopping offenses such as murder hence it is questionable whether it would for rape crime. It does not, therefore, have much deterrence effect that would justify the imposition of the death sentence on rapists however morally reprehensible, depraved and despicable such acts may be. This assertion is supported by the study by Donohue and Wolfers (2006) which found out that there is a lack of sufficient evidence that the death penalty actually deters rape as an offense. According to them, the fact that the rates of convictions of rape crimes globally despite the use of capital punishment mean it has little impact. Savage (2008) also argues that there is a lack of national consensus on whether rape should be subjected to death sentencing. Hence, the best alternative to killing those who abuse children sexually as Gill and Harrison (2013) suggest is to through restorative justice and sex offender treatment programs.
Furthermore, from local and international human rights perspective, a death sentence for rape defendants is not fair. Though from a moral and ethical standpoint that would be the best punishment for rape crime, it would be dangerous if all criminal judicial decisions were influenced by moral and ethical dimensions. Modern International human rights instruments to which the US is signatory emphasize on the right to life which can only be taken aware in very extreme circumstances. In the case of Bachan Singh v State of Punjab (1982), the Indian Supreme Court adopted the “rarest of the rare” doctrine to be applied in capital punishment cases. That is, the death sentence should only be used in cases where the defendant has committed murder in a diabolical, brutal, dastardly, revolting and grotesque way that arouses the society’s extreme and intense indignation. This means that in rape cases where a murder has not been committed, it would be an unusual and cruel punishment to sentence one to death.
Also, as Winter (2008) argue, it would be unsafe to convict rapists to death because, in such rape cases, the testimony of children as witnesses may not be accurate enough for the court to rely on since their memories are prone to error. This author also argues that because there is an issue like prejudice among jurors in sex offense cases and the fact that race may be a factor, the death penalty is not appropriate for rape as an offense. Further, emotions and cultural norms that are usually evoked by abuse cases may lead to a jury pool that is prejudiced against the accused, hence making it almost impossible for them to get an impartial and fair trial, especially for indigent defendants.
References
Aisha K. Gill, and Karen Harrison, Sentencing sex offenders in India: Retributive justice versus sex-offender treatment programs and restorative justice approaches, 8 INTL’ J. CR. J.SCS 2 (2013)
David G. Savage, Death for Rape, an Echo of the Past, ABA J. (2008, April 01). Available at http://www.abajournal.com/magazine/article/death_for_rape_an_echo_of_the_past
John J. Donohue, and Justin Wolfers, Uses and abuses of empirical evidence in the death- penalty debate, 58 STAN. L. REV. (2005).
Rosamund Grant, Contemporary controversies surrounding capital punishment: How does the deterrence theory, victim participation, and human rights impact upon current debate? INTERNET J. CR. (2012).
Ryan J. Winter, Is Rape a Crime Worthy of the Death Penalty? 39 AM. PSY. ASS. J. 4 (2008, April). Available at http://www.apa.org/monitor/2008/04/jn.aspx
