Divided court rejects death penalty for child rape (June 25, 2008)

A Supreme Court divided along ideological lines struck down the constitutionality of Louisiana's law permitting imposition of the death penalty for the crime of child rape.

The case, Kennedy v. Louisiana, No. 07-343, will affect not just Louisiana, but the five other states with similar laws -- Montana, Georgia, Oklahoma, South Carolina and Texas.

The defendant in the case, Patrick Kennedy, was found guilty of raping his eight-year-old stepdaughter. The girl originally told police that two strangers had raped her in her side yard. Police eventually concluded that physical evidence in and around her home was inconsistent with that version of events.

When they learned that Kennedy had skipped work that day and apparently tried to clean up copious amounts of blood in his stepdaughter's bedroom, officers decided he was the likely culprit. About a month after the rape, the girl told her mother that the defendant was the assailant.

Kennedy was found guilty. Louisiana law provides that the district attorney may seek the death penalty for those found guilty of raping children under the age of twelve. The prosecutor sought and the jury returned a sentence of death.

Kennedy appealed the sentence to the Louisiana Supreme Court, arguing that it violated the Eighth Amendment ban on cruel and unusual punishment. The state high court affirmed. It held that although the United States Supreme Court struck down the death penalty for rape in Coker v. Georgia, 433 U.S. 584 (1977), that decision addressed only rape of an adult woman. The Louisiana court explained that capital sentences for rape of a child were justifiable under the Eighth Amendment.

In reaching its conclusion, the Louisiana court followed the two-part Eighth Amendment framework set forth by the Court in Atkins v. Virginia, 536 U.S. 304 (2002) and Roper v. Simmons, 543 US. 551 (2005), first examining whether there is national consensus on the punishment and then considering whether the Court would find the punishment excessive.

The Louisiana court determined that because five states had adopted similar laws in the past decade, the national trend was towards capital punishment for child rape. Moreover, the court held that because children are uniquely vulnerable, permitting the death penalty for child rape was not unduly harsh.

In seeking review of the case, Kennedy relied heavily on Coker v. Georgia, in which the Court emphasized that despite the gravity of rape, it stopped short of taking a human life and therefore did not justify the death penalty. In addition, Kennedy argued that the Court has previously suggested that a five-state bloc in favor of the death penalty for a particular crime or criminal does not constitute a consensus.

Kennedy also argued that the law was unfair in its application, in part because prosecutors selectively sought the death penalty, and in part because it reflected an unsavory history of harsher punishments for black rapists than their white counterparts. In the alternative, Kennedy argued that the law was unfairly applied because the jury was given no evidence that he, moreso than other child rape convicts, was especially deserving of a death sentence.

Opposing the petition, Louisiana argued that the rapid adoption of a child rape death penalty by five states indicated a growing sentiment in favor of the punishment. It also reiterated the state high court's view that Coker was applicable only to rapes of adult women.

On June 25, a 5-4 Supreme Court held that the law violated the Constitution's ban on cruel and unusual punishment.

"The death penalty is not a proportional punishment for the rape of a child," Justice Anthony M. Kennedy wrote for the majority, which was made up of the court’s liberal block. “Difficulties in administering the penalty to ensure its arbitrary and capricious application require adherence to a rule reserving its use, at this stage of evolving standards and in cases of crimes against individuals, for crimes that take the life of the victim."

Justice Samuel A. Alito Jr. wrote the dissent for the court’s four conservative members.

"The harm that is caused to the victims and to society at large by the worst child rapists is grave," Alito wrote. "It is the judgment of the Louisiana lawmakers and those in an increasing number of other states that these harms justify the death penalty."