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Justices to Decide if Rape of a Child Merits Death

By LINDA GREENHOUSE
Published: January 5, 2008

WASHINGTON — The Supreme Court agreed on Friday to decide whether the
Constitution allows the death penalty for the rape of a child.

The justices acted only three days before a scheduled argument in
another important death penalty case, on the standard for judging
whether chemicals used to administer lethal injections make that method
of execution unconstitutionally cruel.

The new case, from Louisiana, is likely to be argued in April, meaning
that during the course of its current term, the Supreme Court will be
examining both the most common method of execution and a categorical
question about which crimes are appropriate for the death penalty.

No one has been executed in the United States for a crime other than
murder since 1964. Of some 3,300 inmates of death row today, only two
are facing execution for an offense that did not involve a killing. Both
are on Louisiana’s death row. The Supreme Court agreed to hear an appeal
from one of them, Patrick Kennedy, who was convicted and sentenced to
death in 2004 for raping his 8-year-old stepdaughter.

In 1977, as part of its wide-ranging re-examination of capital
punishment, the Supreme Court prohibited the death penalty for rape.
While that ruling, Coker v. Georgia, did not specifically discuss the
rape of a child — the victim, although only 16, was a married woman who
was raped at knifepoint — the decision has been widely understood as
limiting the death penalty to the crime of murder.

In the principal opinion in the Coker case, Justice Byron R. White wrote
that “we have the abiding conviction that the death penalty, which is
unique in its severity and irrevocability, is an excessive penalty for
the rapist who, as such, does not take human life.”

But in recent years, a handful of states, responding to public outcries
about sex crimes against children, have amended their death penalty
statutes to make the rape of a child a capital offense. Louisiana was
the first to do so, amending its death-penalty law in 1995 to apply to
the rape of a child under the age of 12. The other states with similar
provisions are Georgia, Montana, Oklahoma, South Carolina and Texas.
Unlike Louisiana, most limit the death penalty to defendants who were
previously convicted of sexual assault against a child.

The Louisiana Supreme Court rejected Mr. Kennedy’s appeal last year in a
64-page opinion that concluded that “rape of a child under the age of 12
years of age is like no other crime” and that death was not a
disproportionate punishment. Taking note of the recent state laws, the
court said there was “compelling” evidence of a national trend toward
treating the crime as distinct from others.

The United States Supreme Court’s recent death penalty jurisprudence has
paid close attention to evidence of whether contemporary society has
reached a consensus on particular applications of capital punishment.
The court relied on such an analysis to rule out the death penalty for
mentally retarded defendants in 2002 and for juvenile killers in 2005.
Louisiana is now invoking the same approach to argue that an application
of the death penalty once widely deemed unconstitutional has become
permissible.

Mr. Kennedy’s lawyers are arguing that any such “trend” is illusory. “By
any objective measure,” their brief says, Mr. Kennedy’s sentence “is not
only cruel and unusual; it is cruel and unique.”

The other inmate is Richard Davis, who was sentenced to death on Dec. 12
for sexually molesting a 5-year-old girl.

The appeal, Kennedy v. Louisiana, No. 07-343, was filed by lawyers from
the Capital Appeals Project, in New Orleans; the Stanford Law School
Supreme Court Litigation Clinic; and a New Orleans law firm, Adams and
Reese.

Among other briefs filed at the court on Mr. Kennedy’s behalf was one
from the National Association of Criminal Defense Lawyers, arguing that
the Louisiana law presedefendants will be put to death. The reason, the group 
asserts, is that
testimony by children, who are usually the principal witnesses in child
rape cases, is often unreliable.

Another brief, from social workers and organizations working with sexual
assault victims, describes the Louisiana law, with its broad definition
of rape and its drastic penalty, as counterproductive and likely to lead
to under reporting of offenses, especially within families.
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