This op-ed originally appeared in the Washington Times on April 25, 2008

The United States Supreme Court last week heard oral arguments about an issue which for many Americans shouldn’t be too complicated. The question is: who should decide the punishment for a crime, the legislature or the courts? In particular, when determining what crimes merit the death penalty, should state governments have a say or should this power be left to judges? According to the Death Penalty Information Center (as of February of this year) there are more than 3,200 persons on death row. As the result of the execrable actions of Louisiana resident Patrick Kennedy (one of only two on death row awaiting execution for crimes that don’t involve murder), the court will issue a ruling this summer in a case called Kennedy v. Louisiana.

Mr. Kennedy was convicted of raping his 8-year-old stepdaughter in 2003. According to court testimony, Mr. Kennedy, then 42, raped the little girl after she went to the garage to “sort Girl Scout cookies” in the home they shared. Later, according to investigative deputies, Mr. Kennedy bragged that the girl “became a lady today.” To spare the child further horrors, prosecutors offered Mr. Kennedy a plea deal which would have eliminated the death penalty. Mr. Kennedy rejected the offer and went to trial where he was unanimously convicted and sentenced to death.

For many Americans cases like these epitomize the rationale for capital punishment. Because if someone like convicted child rapist, Mr. Kennedy, doesn’t deserve the death penalty, who does? And state legislatures are beginning to agree. Unfortunately the courts have muddied the waters in the area and in fact made it harder for a convicted child rapist to get the death penalty.

And the criminal defense bar is doing its part to get in the way as well. Even though convicted child rapists tend not to make the best test cases in criminal law, an unrepentant Mr. Kennedy and his willing team of lawyers press on. Noting that Mr. Kennedy wasn’t convicted of killing the child, only raping her — little to no solace to a child irreparably scarred for life by a man who should have been her protector, not her torturer — he and his legal team argue that no one should be given the death penalty for rape; that it violates the 8th Amendment’s prohibition against “cruel and unusual punishment.”

Candidly, there is precedence for this argument. In 1977, in a case called Coker v. Georgia the Supreme Court held that “the death penalty, which is unique in its severity and irrevocability, is an excessive penalty for the rapist who, as such, does not take human life.” It is precisely this view that the state of Louisiana is challenging. The state of Texas and eight other states have intervened as well, explicitly urging the Supreme Court to allow the death penalty for child rape. While reasonable people may disagree, why should this type of determination remain in the hands of judges? Indeed, how can the Court claim to know that for all time and all circumstance that there will never be an occasion for which a rapist (who doesn’t kill his victims) should be executed?

Although the Court could uphold Louisiana statute without overruling Coker by distinguishing the case of child rape from adult rape, for consistency’s sake the Court should uphold the Louisiana statute and overrule Coker. The Coker decision rests on quite questionable constitutional grounds. First, the finding by the Court in Coker simply doesn’t track with modern developments. Not only does the sociological and scientific community overwhelmingly agree that there is high likelihood for repeat and serial behavior for individuals who engage in this type of crime, but the evidence of the devastation that these crimes wreak against the victims also continues to mount.

Tragically there are many voices in the criminal-law community who argue that these types of crimes — due to their very nature — perpetuate when the victims end up engaging in similar behavior. While a complete understanding of this correlation remains an open question, it is obvious that the calcified nature of the Court decision-making process (the reliance on appeals, arguments and briefs that must be sifted by clerks and judges over literally decades) makes judges particularly ill-suited to decide issues such as this. Thirdly, crime and law enforcement are quintessential legislative responsibilities. Working in the context of the political sensibilities of a given state, legislatures are duly authorized to make the determination of what should or shouldn’t be a crime and also what the punishments for those crimes should be.

Upholding Kennedy’s sentence is clearly of first primacy, but the Roberts Court should go further. It should overturn Coker and thereby clearly return to state governments the power to determine what punishment fits the crime.

Horace Cooper is a senior fellow with the American Civil Rights Union