- The Washington Times - Thursday, June 26, 2008

Louisiana Gov. Bobby Jindal said he will seek to enact laws that would invalidate Wednesday’s U.S. Supreme Court ruling that struck down the death penalty for raping a child.

“One thing is clear,” said Mr. Jindal, a Republican. “The five members of the court who issued the opinion do not share the same standards of decency as the people of Louisiana.”

In a 5-4 decision, the high court ruled as unconstitutional a Louisiana law that permits the death penalty for people convicted of raping children younger than 12. Louisiana had the only two inmates in the country facing death for raping a child.

Supreme Court Justice Anthony M. Kennedy, writing for the majority, said Louisiana’s law violates the Eighth Amendment’s protection against cruel and unusual punishment.

The Eighth Amendment “requires that resort to capital punishment be restrained, limited in its instances of application and reserved for the worst of crimes, those that, in the case of crimes against individuals, take the victim’s life,” wrote Justice Kennedy.

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

Writing for the dissent, Justice Samuel A. Alito Jr. argued that child-rape death penalty laws should be allowed if they reflect society’s “evolving” standards of decency.

“The harm that is caused to the victims and to society at large by the worst child rapists is grave. … It is the judgment of the Louisiana lawmakers and those in an increasing number of other states that these harms justify the death penalty,” wrote Justice Alito, who was joined by Chief Justice John G. Roberts Jr. and Justices Antonin Scalia and Clarence Thomas.

The Louisiana law at issue in Kennedy v. Louisiana authorized the death penalty for Patrick Kennedy, who was convicted of raping his 8-year-old stepdaughter.

A jury chose the death penalty, in part, because of the gruesome nature of the crime: The child required emergency surgery for her injuries.

Kennedy washed the girl with water in an attempt to eliminate DNA evidence, then later tried to blame two neighborhood boys for the crime.

Attorneys for the state of Louisiana argued that the death penalty is a deterrent to sexual assaults on children. Since 1993, five other states - Georgia, Montana, Oklahoma, South Carolina and Texas - have enacted laws allowing the death penalty for raping a child.

Legal analysts said Mr. Jindal’s pledge to keep the death penalty by amending state law may be designed to win him political credit but stands little chance of becoming reality.

“I don’t know how they’re going to do that,” said Ira C. Lupu, George Washington University Law School professor of constitutional law. “The state doesn’t have the authority to override the Supreme Court decisions that are based on interpretations of the federal Constitution. As long as this ruling today doesn’t get overturned, they’ll never be able to execute someone for anything other than murder.”

In a separate decision, the Supreme Court cut the $2.5 billion punitive damages award in the 1989 Exxon Valdez disaster to $507.5 million, setting an upper limit on damages in maritime accidents.

The high court ruled 5-3 that Exxon Mobil Corp. need pay only an average of $15,000 to each victim of the country’s biggest oil spill. Justice Alito recused himself because he owns Exxon stock.

A jury ruled in 1994 that Exxon should pay $5 billion in punitive damages for the accident, in which the tanker Exxon Valdez spilled more than 11 million gallons of oil into Prince William Sound in Alaska. A federal appeals court halved that penalty in 2006.

Exxon argued that the damages should be reduced because the oil corporation had spent $3.4 billion to clean up the spill and compensate victims such as fishermen and landowners.

The Supreme Court’s new standard, as set out in Exxon Shipping Company v. Baker, stipulates that punitive damages cannot exceed compensatory damages in maritime accident lawsuits. Compensatory damages normally refer to the property damage, physical injury or monetary losses that can be proved.

In the majority opinion, Justice Souter said the damages in the Exxon Valdez case were excessive, noting that the 33,000 plaintiffs in the case could prove only $507.5 million in compensatory damages.

“The real problem is the stark unpredictability of punitive damages,” Justice Souter wrote. “A penalty should be reasonably predictable in its severity.”

Chief Justice Roberts and Justices Kennedy, Scalia and Thomas joined him in the majority opinion.

In a dissenting opinion, Justice Ginsburg accused the majority of “lawmaking” by deciding to award punitive damages based on what Exxon had paid in compensatory damages. “The new law made by the court should have been left to Congress,” she wrote.

Justice Breyer, in his dissent, also opposed the “lawmaking” described by Justice Ginsburg. Joining the dissent was Justice Stevens, who noted that Congress has not acted to limit punitive damages in maritime cases.

Environmentalists criticized the ruling.

“For the court to require a company that recorded a 2007 profit of $40.6 billion and that posted the highest quarterly results in U.S. corporate history in February to pay a mere $500 million in punitive damages to the affected Alaskans makes a mockery of justice,” said John Passacantando, director of the environmental advocacy group Greenpeace USA.



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