The sentencing to death of a Louisiana man last week for raping an 8-year-old girl has reopened a debate about whether crimes that do not involve killings may be punished by death.
There has not been an execution for rape in the United States since 1964, and no one has been executed for any crime that did not involve a killing since the Supreme Court reinstated the death penalty in 1976.
The Louisiana law under which the man, Patrick O. Kennedy, was convicted allows the death penalty for the rape of a child younger than 12. It was enacted in 1995.
Graham da Ponte, one of Kennedy's lawyers, said the punishment was disproportionate to the crime.
A number of states and the federal government have laws on the books that allow the death penalty for crimes not involving killing. Among them are treason, espionage, kidnapping, aircraft hijacking and large-scale drug trafficking. California allows executions for train wrecking and for perjury that leads to another's execution.
Florida and Montana have broad capital rape laws that do not distinguish by the victim's age, though the Florida Supreme Court has ruled that the Florida law is unconstitutional.
In 1977, the Supreme Court ruled that the death penalty may not be imposed for the rape of an adult woman. The penalty was disproportionate to the crime, the court said, and therefore forbidden as cruel and unusual punishment under the Eighth Amendment.
"Life is over for the victim of the murderer," Justice Byron White wrote for the majority. "For the rape victim, life may not be nearly so happy as it was, but it is not over and normally is not beyond repair."
The defendant in that case, Ehrlich Coker, escaped from a state prison in Georgia where he was serving time for a murder and two rapes, one of them of a 16-year-old.
He then raped another 16-year-old in front of her husband. He was sentenced to death for that crime.
Dissenting from the majority's decision to overturn his death sentence, Chief Justice Warren E. Burger wrote that the ruling "prevents the state from imposing any effective punishment upon Coker for his latest rape."
Legal experts differed on whether the reasoning of that case would also forbid executions in cases involving the rape of a child.
When Louisiana enacted its law in 1995, a few legislators argued against it based on concerns about its constitutionality. Others wondered whether it would encourage child rapists to kill their victims on the theory that they would have nothing to lose.
"I don't know how a family member winding up with the death penalty makes a child more likely to report a rape," da Ponte said, referring to the fact that many rapes of children are committed by relatives.
In 1996, the Louisiana Supreme Court, in a 5-2 decision, ruled that the law was constitutional.
Three justices of the U.S. Supreme Court - John Paul Stevens, Ruth Bader Ginsburg and Stephen G. Breyer - issued an unusual statement when that court declined to hear the case in 1997. They noted that the decision not to hear the case "does not in any way constitute a ruling on the merits."
That is a legal truism that does not ordinarily need saying, and legal experts said the statement suggests that at least those three justices had reservations about the Louisiana law.
The case ended in a plea bargain for a life sentence. Louisiana prosecutors have pursued other cases under the child rape law, but Kennedy's is the first case in which the jury returned a death sentence.
"I know of eight or nine indictments under the statute," said Nick Trenticosta of the Center for Equal Justice in New Orleans, a group that represents people on death row in appeals. "Each time the defendant pleaded guilty and received a life sentence. In most of them, the victim was the defendant's child and could not stomach putting her father to death."
Legal experts say the U.S. Supreme Court is likely to hear Kennedy's case if the Louisiana courts uphold his death sentence.
Before the Supreme Court suspended the death penalty in 1972, 16 states and the federal government authorized it for rape.
Between 1930 and 1964, 455 men were executed for rape in America, almost all in the South; 405 of them were black, and almost all were charged with raping white women.
Kennedy was accused of raping an 8-year-old relative, injuring her so badly that she required surgery. The girl, who is now 13, testified against him. His goddaughter also testified, at the penalty phase of the trial. Now in her 20s, the woman said that Kennedy had raped her on three occasions when she was 8 or 9.
Assistant District Attorney Donnie Rowan told the jury in Gretna, La., that these acts warranted execution.
"He made the choice to take the innocence of those two girls and throw it into the dirt," Rowan said.