No Executions for Child Rapists

Louisiana law made raping a child a death penalty offense. Today, June 25th, 2008, the United States Supreme Court ruled in a 5-4 decision that putting child rapists to death, when the victim lived and there was no intent to kill the victim, violated the 8th Amendment. The Louisiana legislature had made the rape of a child under the age of 13 a capital offense.

In addition to the holding itself, attention should be paid to the fact that the decision is so close. It is to be expected that in the next few years vacancies will appear and new Supreme Court Justices will have to be nominated by the President and voted on by the Senate. Since only one Justice is responsible for the final outcome when a decision is 5-4, a change in the Court's membership can change the holdings of the future.

The opinion's statement that death sentences should be reserved 'for crimes that take the life of the victim' will apply, the court said, to crimes against individuals - thus leaving intact, for example, a possible death sentence for treason.

Justice Alito's dissent questioned the assertion by the majority that there is a public consensus against the death penalty for child rapists. But of even more importance, he discusses the fact that courts around the country, and probably state legislatures as well, have been relying on dicta from Coker v. Georgia to conclude that the Court in Coker held that unless a victim died, the death penalty was unconstitutional. Thus he concludes that the erroneous reliance on dicta has skewed the results when the majority looked at the number of legislatures who have passed such laws. One cannot help but wonder if opinions were pithy and concentrated on the legal rational of the holding alone, dicta would be a bit more obvious and less likely to be considered by other courts trying to decide on the basis of precedent.

Texas passed a similar statute in 2007 that made child rapists death-penalty eligible. Since this law is now unconstitutional, an amended law might list this crime and some others as "life without the possibility of parole" eligible.

Should the Texas legislature list crimes that while not eligible for a death penalty could be eligible for life without the possibility of parole? What crimes would you include?