By James Vicini
WASHINGTON (Reuters) - The U.S. Supreme Court in a majorcapital punishment decision struck down on Wednesday the deathpenalty for child rape, its first ruling in more than 30 yearson whether a crime other than murder can be punished byexecution.
The nation's highest court ruled by a 5-4 vote that thedeath penalty for the crime of raping a child violated theconstitutional ban on cruel and unusual punishment.
Writing for the court majority, Justice Anthony Kennedysaid the Constitution barred a state from imposing the deathpenalty for the rape of a child when the crime did not result,and was not intended to result, in the victim's death.
He said a national consensus exists against capitalpunishment for the crime of child rape and that the deathpenalty, based on current evolving standards, should bereserved for the worst crimes that take the victim's life.
"When the law punishes by death, it risks its own suddendescent into brutality, transgressing the constitutionalcommitment to decency and restraint," he wrote.
Republican presidential candidate Sen. John McCain said the"ruling is an assault on law enforcement's efforts to punishthese heinous felons for the most despicable crime."
Democratic presidential candidate Sen. Barack Obama said hedisagreed with the ruling.
"Had the Supreme Court said, 'We want to constrain theabilities of states to do this to make sure that it's done in acareful and appropriate way,' that would have been one thing.But it basically had a blanket prohibition and I disagree withthat decision," Obama told a news conference in Chicago.
The ruling was a victory for Patrick Kennedy, 43, ofLouisiana, who challenged his death sentence after beingconvicted of raping his 8-year-old stepdaughter in 1998.
Of the more than 3,300 inmates on death row in America,Kennedy and another man convicted of child rape in Louisianaare the only ones who did not commit murder.
The Supreme Court last ruled on the death penalty and rapein 1977, when it outlawed executions in a case in which thevictim was an adult woman. It declared the death penalty anexcessive penalty for a rapist who does not take a human life.
That decision left open whether the death penalty could beimposed for child rape. The Louisiana law, adopted in 1995,allows the death penalty for those convicted of rape of a childunder the age of 12. It was later amended to change the age to13.
LAST EXECUTION FOR RAPE 44 YEARS AGO
Montana, Oklahoma, South Carolina and Texas have similarlaws. The last execution in the United States for rape occurred44 years ago.
Kennedy, a moderate conservative who often casts thedecisive vote on the closely divided court, was joined by thecourt's liberals -- Justices John Paul Stevens, David Souter,Ruth Bader Ginsburg and Stephen Breyer.
The court's conservatives -- Chief Justice John Roberts andJustice Samuel Alito, both appointed by President George W.Bush, and Justices Antonin Scalia and Clarence Thomas --dissented.
Alito criticized the court's decision.
He said it means the death penalty would be barred "nomatter how young the child, no matter how many times the childis raped, no matter how many children the perpetrator rapes, nomatter how sadistic the crime, no matter how much physical orpsychological trauma is inflicted, and no matter how heinousthe perpetrator's prior criminal record may be."
He added, "I have little doubt that in the eyes of ordinaryAmericans, the very worst child rapists ... are the epitome ofmoral depravity."
Attorneys for the Louisiana man had said the death penaltyfor rape was allowed in only a handful of countries.
The American Civil Liberties Union and the NAACP LegalDefence and Educational Fund had said a historical consensusexisted against the death penalty for rape in the UnitedStates, except for Southern states willing in the past toexecute blacks, especially those convicted of raping whitewomen and children.
In Louisiana, Gov. Bobby Jindal, a Republican, said: "I amoutraged by the Supreme Court's decision. It is an affront tothe people of Louisiana and the jury's unanimous decision inthis case."
Jindal, who has been mentioned as a possible running matefor McCain, said, "The Supreme Court is dead wrong."
(Editing by Deborah Charles and Peter Cooney)
