The Supreme Court struggled Wednesday over whether the rape of children should be punishable by execution, a case that tests the limits of expanding the death penalty for crimes other than murder.
The case of Patrick Kennedy of Harvey, La., who raped his 8-year-old stepdaughter, represents a shift in the death penalty debate. In recent years, the Supreme Court has narrowed capital punishment, overturning it for murderers who are juveniles or are mentally retarded.
Chief Justice John Roberts and Justice Antonin Scalia made clear that it's time to consider evolving standards, at least on the subject of child rape.
But Justice Stephen Breyer appeared cautious about a change. "I'm not a moralist. I'm a judge," he said. "As a judge, I look at the law. It seems for 43 years, no one has been executed but for murder."
Besides Louisiana, four other states -- Montana, Oklahoma, South Carolina and Texas -- allow executions of child rapists.
Kennedy's lawyer, Jeffrey Fisher, said not enough states have enacted the death penalty for child rape to justify the Supreme Court's support for it.
But Roberts questioned how a consensus can develop among the states if the court steps in at the outset and says a death penalty for child rape is unconstitutional.
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