( CNN ) -- The Supreme Court ruled Wednesday morning that child rapists can not be given the death penalty , effectively reserving the punishment only for murderers . CNN 's Jeffrey Toobin said the court 's ruling falls in line with other decisions on the death penalty . The 5-4 decision stems from a Louisiana case in which Patrick Kennedy , 43 , was sentenced to die in 2003 for the sexual assault of his 8-year-old stepdaughter . Proponents of Louisiana 's law , which allowed child rapists to be eligible for the death penalty , say that besides murder , no crime is more deserving of the death penalty than child rape . Kennedy would have been the first rapist in 44 years to be executed for a crime in which the victim was not killed . In the majority opinion , Justice Anthony Kennedy said `` evolving standards of decency '' forbid capital punishment for any crime other than murder . CNN 's senior legal analyst , Jeffrey Toobin , spoke with CNN 's Heidi Collins outside the Supreme Court about the impact of the ruling . Collins : This is a huge decision here . What do you make of it ? Toobin : It was just high drama in the court today . It 's always dramatic at the end of the Supreme Court term . Here it was literally life and death , one of the big open questions in constitutional law about the death penalty : Can you execute someone for a crime other than murder ? Anthony Kennedy , the swing vote on so many cases , decided this case , it was 5-4 . ... He did n't diminish the seriousness of the crime , but he said the risks of expanding the death penalty are simply too great . He pointed out that there are more than 5,000 child rapes every year in the United States . All of them would raise the possibility of the death penalty . There are only a handful of states -- I think it was six -- that allow the death penalty for child rape . Forty-four states and the federal government say no . He said there is a national consensus that this is not an appropriate punishment . So , this really rules out not just the death penalty for child rape , but any crime other than murder . So it 's a major , major decision . See more about the reach of the decision » . Collins : A national consensus except those six states . It 's interesting when you look at the court of public opinion . How do you think this decision is going to go down in public ? Toobin : Well , I think it 's a tough call because support for the death penalty nationwide in the past 10 years has actually been going down . But child rape is such a horrendous crime and all of us have such a natural revulsion towards it that you 're never going to get a lot of support for any sort of reduction in sentence . But I think , given the fact that this is a Supreme Court that said no death penalty for murderers under 18 , no death penalty for the mentally retarded , this decision is consistent with a certain restriction on the death penalty , which is reflected in the court but also in a kind of national change that 's going on . Collins : And in Sean Callebs ' piece that we had , I do n't know if you heard it . Toobin : I saw it , yeah . Collins : One woman , who actually brought up a very interesting point , when you think about all of this and when you think about the child , the victim , she said , you know , if they know they 're going to die for this crime , why would they leave a living witness ? Toobin : Justice Kennedy made precisely that point in the opinion . He said , allowing the death penalty here would create a perverse incentive for child rapists to murder their victims . He also pointed out what a difficult moral choice it would put child victims in testifying , giving children literally the power of life and death in their testimony over their attackers . That is something that he wanted to relieve children of -- that burden . Collins : Will they always have to testify ? Toobin : Yeah , pretty much . There have been rare examples ... if a child , for example , is simply too young to testify . There are horrible cases of rapes of babies and things like that . But by and large there has to be some sort of testimony from a child . It can be in a noncourtroom setting . It can be sort of in a deposition , not in front of the jury . But you do have to have the child testify . Collins : It 's just such a tough decision all around . 5-4 on that one , very interesting .
Toobin : Ruling falls in line with recent court decisions on death penalty . Justice Kennedy , in decision , said it would not be fair to place burden on child victim . He also noted that the state of Texas has a history of executing children and young adults who were convicted as juveniles.