A narrowly divided Supreme Court ruled Wednesday that imposing the death penalty for the rape of a child is unconstitutional.

In a 5-4 decision, the court overturned a Louisiana law that called for the death penalty for raping a child under 12, and it removed from death row a man convicted of attacking his 8-year-old stepdaughter.

Justice Anthony M. Kennedy wrote the opinion, saying, in essence, that the crime, awful as it is, does not merit capital punishment.

“The incongruity between the crime of child rape and the harshness of the death penalty poses risks of over-punishment and counsels against a constitutional ruling that the death penalty can be expanded to include this offense,” Kennedy wrote.


He was joined by Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer.

Sen. Barack Obama of Illinois, the presumptive Democratic nominee for president, criticized the court’s decision at a Chicago news conference.

“I have said repeatedly that I think that the death penalty should be applied in very narrow circumstances for the most egregious of crimes,” he said.

“I think that the rape of a small child, 6 or 8 years old, is a heinous crime, and if a state makes a decision that under narrow, limited, well-defined circumstances, the death penalty is at least potentially applicable, that does not violate our Constitution.”


Obama has frequently cited the near-abolishment of the death penalty in Illinois as one of his top legislative accomplishments.

His probable Republican opponent in the presidential race, Sen. John McCain of Arizona, also objected.

“Today’s Supreme Court ruling is an assault on law enforcement’s efforts to punish these heinous felons for the most despicable crime,” McCain said. “That there is a judge anywhere in America who does not believe that the rape of a child represents the most heinous of crimes, which is deserving of the most serious of punishments, is profoundly disturbing.”

The four members of the court’s conservative wing also sharply criticized the ruling, saying a small but growing number of states had determined that the rape of a child deserved the death penalty; they said the court majority was interfering with that judgment.


“The harm that is caused to the victims and to society at large by the worst child rapists is grave,” Justice Samuel A. Alito Jr. wrote. “It is the judgment of the Louisiana lawmakers and those in an increasing number of other states that these harms justify the death penalty.”

Alito was joined in his dissent by Justices Antonin Scalia and Clarence Thomas and Chief Justice John G. Roberts Jr.

The court in 1977 ruled that the death penalty for rapists was unconstitutional under the 8th Amendment’s ban on cruel and unusual punishment. That decision involved the rape of a 16-year-old female, whom the court considered an adult.

More than a decade ago, Louisiana made rape a capital crime if the victim was younger than 12. The state said it has sought the death penalty in only five cases, twice obtaining a capital verdict.


Several other states, including Texas, Georgia and South Carolina, have similar laws, but they require that the assailant have committed a second, separate offense before the death penalty is an option.

The defendant in the case on which the court ruled Wednesday, Patrick Kennedy, has maintained his innocence. He had been offered life in prison if he pleaded guilty. He refused and was sentenced to death in 2003.

He and his stepdaughter originally said that two boys assaulted her in March 1998 in the backyard of their home in Jefferson Parish, across the Mississippi River from New Orleans. But police found inconsistencies in Kennedy’s story and blood on sheets inside the home. The girl was badly injured and required surgery.

Kennedy, 43, will still face life in prison with no possibility of parole. His lawyers plan to appeal his conviction.


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Tribune staff writer John D. McCormick in Chicago contributed to this report.