Media for Kennedy v. LouisianaAudio Transcription for Oral Argument - April 16, 2008 in Kennedy v. Louisiana
Audio Transcription for Opinion Announcement - June 25, 2008 in Kennedy v. Louisiana
Anthony M. Kennedy:
The State of Louisiana has argued that states have felt constrained by this Court's holding in Coker.
The State says that this is blocked, the development of legislative consensus.
We see no clear indication of this for the reasons discussed at length in the opinion.
Furthermore, consensus has never been dispositive.
In the end, our judgment -- in our own judgment must be brought to bear on the question of the acceptability of the death penalty under the Eight Amendment.
It is obvious that the rape in this case caused the victim prolonged physical and mental suffering.
Nonetheless, the constitutional prohibition against excessive or cruel and unusual punishments mandates that the State's power to punish be exercised in accordance with evolving standards of decency in the maturing society.
It’s an established principle that decency, in its essence, presumes respect for the individual and thus moderation or restraint in the application of capital punishment.
Difficulties in administering the penalty to ensure against its arbitrary and capricious application require a caution at this stage of evolving standards and expanding the death penalty to an area where standards to confine its use are indefinite and obscure.
We find significant the number of executions that would be allowed under respondent's approach approximately 5,702 incidents of rape of a child under the age of 12 were reported nationwide in the year 2005.
This is almost twice the total incidence of intentional murder for victims of all ages reported during the same period.
We do sanction the death penalty for this rape offense, the number of permissible executions could not be reconciled with our evolving standards of decency and the necessity to constrain the use of the death penalty.
We hold that as it relates to violent offenses against individual persons, the death penalty is disproportionate and an excessive punishment where death did not result from the crime.
Our ruling is consistent with justifications offered for the death penalty, true, we cannot say that the death penalty will serve no retributive or deterrent function in this case.
But a number of factors demonstrate the serious negative consequences of making child rape a capital offense.
Seeking the death penalty for child rape forces a moral choice on the child victim who testifies.
She is not of mature age to make that choice.
In addition, the problem of unreliable, induced, or even imagined to child testimony, heightens the risk of wrongful convictions.
There also is the problem of under reporting of child rape, which diminishes the penalty’s deterrent effect.
And by making the punishment for child rape and murder equivalent, a State that punishes child rape by death may remove a strong incentive for the rapist not to kill the victim.
One last point there as mentioned, it’s been argued that our determination that the death penalty for child rape is unconstitutional, will block further consensus in favor of the penalty from developing.
This concern overlooks the meaning and full substance of the established proposition that the Eight Amendment is defined by the evolving standards of decency that mark the progress of a maturing society, and that principle requires that use of the death penalty be limited and restrained, and reserved for the worst offenders and offenses.
In most cases, justice is not better served by terminating the life of the perpetrator rather than confining him and preserving the possibility of rehabilitation.
The judgment of the Supreme Court of Louisiana has reversed.
The case is remanded for further proceedings not inconsistent with this opinion.
Justice Alito has filed the dissenting opinion, in which the Chief Justice and Justice Scalia and Thomas have joined.