ALEX CHADWICK, host:
This is Day to Day. I'm Alex Chadwick.
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I'm Madeleine Brand. Coming up, the trendiest new swimsuit for this summer if you want to win a medal at the Olympics, but is it clean? Controversy builds over the suit that critics call technical doping.
CHADWICK: First, the Supreme Court tomorrow is going to hear another death penalty case. These days, most are about limiting executions, but not this time. This case is about whether a state can sentence someone to death for a crime other than murder. It was a heinous crime. Patrick Kennedy was sentenced to death for the brutal rape of his eight-year-old stepdaughter in Louisiana. Joining us is slate.com legal analyst and Day to Day regular Dahlia Lithwick. Dahlia, welcome back. Who is this man Patrick Kennedy? What about him?
Ms. DAHLIA LITHWICK (Legal Analyst, Slate.com): Well, as you said, Alex, he's a resident of the state of Louisiana, which happens to be one of five states in the country that still has capital punishment for child rapists, for non-homicide offenses. On the morning of March 2, 1998, he called in a 911 report saying that his then eight-year-old stepdaughter had been raped. There was a lot of equivocal physical evidence in this case. Her testimony changed, but she did eventually implicate him.
And as you said, he was tried and convicted for this rape and sentenced to die for it. The question before the Supreme Court is, can the execution of somebody who did not commit a homicide, who committed a child rape, be permissible under the Constitution? Or is it under the Eighth Amendment, cruel and unusual punishment?
CHADWICK: You write about this in your piece at slate.com. Go over the, sort of, the history of the decision not to execute people who have not murdered other people. I hadn't realized this, but it goes back decades and decades. We just stopped doing that.
Ms. LITHWICK: That's right. There was a Supreme Court almost directly on this issue in 1977, when the Supreme Court ruled, in a case called Coker versus Georgia, that the Constitution simply bars the execution of someone who rapes but does not kill someone. That involved the rape of a 16-year-old girl, who the court treated, in that case, as an adult. But what the court said in that opinion was, the death penalty is, quote, "excessive for rapists, who, as such, do not take human life." So Coker stood for the principle, whether or not it was accurate, that we just don't kill people for non-homicides. We don't kill people for rape. Louisiana contends now, this is different. This is child rape, and that is not decided by Coker. As you said, though, since 1964, long before the Coker decision, we have simply not killed a rapist in this country. So, even absent the Supreme Court deciding this issue, it seems as though the people had, sort of, decided it long before.
CHADWICK: Well, you write very sympathetically, I think, about this dilemma facing the court because it has to balance here, cruel and unusual punishment, a term, I think, we all are at least familiar with, and evolving standards of decency. And you go on for some time about how these standards, they evolve and they devolve and often in different directions.
Ms. LITHWICK: Most constitutional tests are crisper than this. The Eighth Amendment test has come to be a very, very sort of squishy test wherein, quote, "national consensus," and, quote, "evolving standards of decency" get measured by the court. So the court can't simply say, well, if the framers hung you, hanging is OK. There's this question that the court has to take into account, what a national polls say? What is the general public sentiment? Which way is it trending? And even what do foreign courts think of this? And that has become enormously complicated.
In the last couple of years, as you'll recall, the Supreme Court has done away with the execution of the mentally retarded in 2002, and then in 2005, gotten rid of the execution of folks who were minors at the time of their crimes. So there has been this sense that the growing trend, the national consensus is evolving away from more capital punishment. But at the same time, if you, sort of, try to measure trends back and forth, it's also quite clear that there is a trend to have capital punishment for non-homicide crimes.
CHADWICK: It looks to me, reading your piece, as though you want no part of sitting on the bench having to decide this one.
Ms. LITHWICK: My feeling is, people are quite uneasy with the death penalty, and yet, people are more punitive than ever about child rapists. So I do not envy the court having to try to ferret out from all of that some sweeping constitutional rule.
CHADWICK: Dahlia Lithwick of slate.com on a big case at the Supreme Court tomorrow. Dahlia, thank you again.
Ms. LITHWICK: It's always a pleasure, Alex.
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