For three decades, the Supreme Court has permitted the death penalty only for the crime of murder. On Tuesday, a Louisiana man under death sentence filed a new appeal asking the Court to maintain that limit, barring his execution for the crime of rape of a child. The Louisiana Supreme Court, however, ruled on May 22 that the Supreme Court’s 1977 decision barring capital punishment for rape (Coker v. Georgia) does not apply when the victim is a child under age 12.

UPDATE: The petition has been docketed as 07-343.
The petition in Kennedy v. Louisiana can be downloaded here. The lengthy opinion of the state Supreme Court can be found in the petition’s appendix here.

The case could provide the first opportunity for the Court under Chief Justice John G. Roberts, Jr., to indicate whether it will continue to interpret the constitutionality of death penalty laws in the U.S. partly on the basis of what other countries do on the question. In the Court’s most recent rulings against application of the death penalty, barring it for juveniles and for mentally retarded individuals, it relied in part upon international as well as national trends. According to Amnesty International, more than half the nations that still have the death penalty do not impose it for child rape. (Inside the U.S., five states including Louisiana allow the penalty for child rape; the Kennedy petition says that prosecutors in the other states refuse to seek it.)

Patrick Kennedy, a 43-year-old black man from suburban New Orleans, has been sentenced to death after being convicted of raping his eight-year-old stepdaughter, identified in court papers only as “L.H.” He has contended since the assault occurred in March 1998 that it was committed by two neighborhood boys. His attorneys have said he refused to plead guilty when a deal was offered to spare him from a death sentence.

His petition says that he “is the only person in the United States who is on death row for a non-homicide offense. He has been sentenced to die for the crime of rape — an offense for which no person has been executed in this country for over forty years” — since Missouri executed Ronald Wolfe in 1964.

His lawyers posed two questions:
“1. Whether the Eighth Amendment’s Cruel and Unusual Punishment Clause permits a State to punish the crime of rape of a child with the death penalty.
“2. If so, whether Louisiana’s capital rape statute violates the Eighth Amendment insofar as it fails genuinely to narrow the class of such offenders eligible for the death penalty.”

Louisisna’s legislature made aggravated rape a capital crime in 1995, when the victim was under 12 years of age. That is the way the law stood when Kennedy received a death sentence. In 2003, the state legislature changed the law to make that punishment available when the victim was under 13.

The Supreme Court, on June 2, 1997, refused to hear a pre-enforcement challenge to the Louisiana law. Three justices said in a separate statement that review of that case may have been barred for jurisdictional reasons, because the individual involved, Patrick DeWayne Bethley, had not been convicted of any crime, nor sentenced. (The Court’s order and the separate opinion in Bethley v. Louisiana, docket 96-8334, can be found here.)

The new appeal argues that the Louisiana Supreme Court decision upholding the child rape sentencing law “flouts the overwhelming national consensus that capital punishment is an inappropriate penalty for any kind of rape.” The Kennedy case, it adds, “stands in the ideal procedural posture for this Court’s review and actually highlights the distressing realities attendant to extending the death penalty into the realm of child rape. There would be no benefit from further percolation” on the issue in lower courts.

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