Legal Commentary

The Supreme Court this morning decided Kennedy v. Louisiana, the child rape case that many of us thought would be a test of the future of the death penalty in the US.  By a 5-4 vote the Court struck down Louisiana's death penalty statute as it applies to the rape of a child under the age of 12.  The Court, in 1977's Coker v. Georgia decision had held that the death penalty was a disproportionate punishment "for the rape of an adult woman," leaving open the possibility that it was proportionate for the rape of a child.  The Court closed that door this morning, concluding its opinion:  "Difficulties in administering the penalty to assure against its arbitrary and capricious application require adherence to a rule reserving its use, at this stage of evolving standards and in cases of crimes against individuals, for crimes that take the life of the victim."

In recent years the Supreme Court has prohibited the execution of the mentally retarded and those who were under 18 when they committed their crimes.  Add to that list today those who commit crimes  that do not "take the life of the victim" and it is clear that the Supreme Court is attempting to limit, though certainly not eliminate, the use of the death penalty in the U.S.  The Court appears to be taking seriously the mandate it has set out at least since Furman v. Georgia was decided in 1972 that states limit the imposition of the death penalty to the worst of the worst of criminal offenders.

And the numbers bear this out.  Since their highs in the late 1990s,  executions are down by more than half and new death sentences are down by more than two-thirds.   With more than 3,000 people on the nation's death rows and only 42 put to death last year, the nation has a nearly 80 year supply of condemned inmates at the moment.  What this means for the future of the death penalty, is less clear.  Either the death penalty is beginning its slow descent into disuse or the current round of procedural and substantive reform will have the effect of sanitizing and re-invigorating the penalty in the years to come.