This article first appeared in the St. Louis Beacon: Two death penalty cases in the U.S. Supreme Court on Wednesday could affect Missouri. In one, a splintered court ruled that Kentucky could resume lethal injections, a decision that could restart executions in Missouri and most other states. In the other case, the court heard arguments that capital punishment should be permitted for child rape, a position that Missouri Gov. Matt Blunt has urged on the court.
The court upheld the most common form of lethal injection in a 7-2 decision in the case of Baze v. Rees, although the justices in the majority couldn't agree on a single rationale. Chief Justice John G. Roberts Jr.'s opinion says that an execution method is not cruel unless it poses a "substantial" or "objectively intolerable" risk of substantial harm. A death row inmate cannot win a challenge to a death penalty procedure "merely by showing a slightly or marginally safe alternative."
The decision could restart executions in Missouri where they had been stopped while the court considered the constitutionality of lethal injection.
The child rape case comes from Louisiana where the stepfather of an 8-year-old girl was sentenced to death after he was convicted of a brutal rape. The Supreme Court ruled three decades ago that it was unconstitutional to execute a man for raping an adult woman. Up to that point, nine out of 10 men executed for rape were black. The 1977 decision did not address the question of whether men could be executed for raping children.
Gov. Matt Blunt has taken the unusual step of filing a brief calling upon the court to open the door to execution of child rapists. In the brief, Blunt points to the notorious Michael Devlin case as a reason to permit executions for child rape.
Victims rights groups in Louisiana have opposed execution for child rapes, fearing that fewer people would be willing to turn in a family member who was a rapist if it meant sending him to the execution chamber. There is also concern that innocent people could be convicted. The girl involved in the Louisiana case originally said two boys raped her; she changed her story and implicated her stepfather after she was told that was the only way to avoid foster care.
Justice Anthony M. Kennedy, who often is the swing vote on the court, seemed in his questioning to be trying to find a way to allow the death penalty in a narrow set of child rape cases, according to the Scotusblog.