Bold and all else by me:
http://en.wikipedia.org/wiki/Kennedy_v._Louisiana
Opinion of the Supreme Court Majority
On June 25, 2008, the Supreme Court, splitting 5-4, held that "[t]he Eighth Amendment bars Louisiana from imposing the death penalty for the rape of a child where the crime did not result, and was not intended to result, in the victim's death."
In its majority opinion authored by Justice Kennedy, the Court explained that the application of the death penalty had to rest on national consensus, and that as only six States permitted the death penalty for child rape, no such consensus existed. In formulating the idea of "national consensus" the Court relied on the previous cases Roper v. Simmons (2005), which outlawed the execution of minors, and Coker v. Georgia (1977), which outlawed the application of the death penalty for the crime of rape.According to the Court, "[t]he death penalty is not a proportional punishment for the rape of a child." The opinion, which was joined by the court's four more liberal judges, went on to state, "The court concludes that there is a distinction between intentional first-degree murder, on the one hand, and non-homicide crimes against individuals, even including child rape, on the other. The latter crimes may be devastating in their harm, as here, but in terms of moral depravity and of the injury to the person and to the public, they cannot compare to murder in their severity and irrevocability." The opinion concluded that in cases of crimes against individuals, "the death penalty should not be expanded to instances where the victims life was not taken" [11]
Curiously, the majority opinion left open the possibility of the death penalty for 'drug kingpins', as well as treason, espionage and terrorism, these being considered crimes against 'the State' rather than against 'individual persons':
"Our concern here is limited to crimes against individual persons. We do not address, for example, crimes defining and punishing treason, espionage, terrorism, and drug kingpin activity, which are offenses against the State."[12]
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So, if I am reading this correctly, if we collectively can get EACH of our states to pass the DP for the rape of a child, it would then become OK to have it for a national law???? LETS GET STARTED NOW!!! I understand the concern that they will kill their victims, but honestly, they are now, and what we are doing doesn't seem to be even slowing them down. At least we could prevent some of their victims maybe.