Forty-four years have passed since any criminal in the United States was executed for a crime in which the victim was not killed. The Supreme Court, in Kennedy v. Louisiana (07-343), will consider whether to allow states to resume the practice of imposing a death sentence for a non-homicide crime "“ in this case, for the crime of raping a child under age 12.

Background

Since a Supreme Court ruling in 1910 (Weems v. U.S.), it has been clear as a constitutional matter that the death penalty may be imposed only for the most serious crimes "“ crimes severe enough that execution would be a proportionate punishment. The Court has never spelled out, in a final way, which crimes are in that category. Rather, it has moved from crime to crime for which states have sought the ultimate punishment, and judged each in turn. Its last decision focusing on the nature of the crime came in 1977.

That year, in Coker v. Gerogia, a plurality of the Supreme Court remarked that "rape is without a doubt deserving of serious punishment; but in terms of moral depravity and of the injury to the person and the public, it does not compare with murder, which does involve the unjustified taking of human lifeWe 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." Since that time, the Court has not upheld capital punishment for any crime in which death does not result. At the time the Coker case was decided, it had been 13 years since anyone in the Nation was executed for a crime other than murder. (Missouri put Ronald Wolfe to death in 1964 for the crime of rape and, later that year, Alabama executed James Coburn for robbery.)

Justice John Paul Stevens is the only member of the Court at the time of the Coker decision who is serving now (he was in the majority then), and thus the Court's changed membership might well become a factor in its decision on whether to uphold a death sentence for a non-homicide crime. That will be tested when the Court considers Kennedy v. Louisiana, a case in which the Louisiana Supreme Court upheld a death sentence for the rape of a child under age 12. In its opinion in May 2007, the state's highest court remarked that "it seems clear that if the [Supreme] Court is going to exercise its independent judgment to validate the death penalty for any non-homicide crime, it is going to be for child rape."

The state court also pointed out that two new Justices have joined the Court since it laid down (by a vote of 5-4 in the 2005 decision in Roper v. Simmons) a two-part test for judging whether the death penalty was unconstitutional for a given category of case. First, a court is to review whether there are objective signs of a consensus, especially in the actions of state legislatures, on whether to allow capital punishment for a specific category of crime or defendant, and, second, whether, independent of any such consensus, the death penalty for that category is deemed to be a disproportionate punishment." (The five Justices who spelled out that test remain on the Court now.)

The new capital punishment case now before the Justices involves Patrick Kennedy, of suburban New Orleans, who was sentenced to death after being convicted of the "aggravated rape" of his eight-year-old stepdaughter in March 1998. Kennedy and another death-row inmate in Louisiana, (At the time of his crime, the Louisiana law allowed a death sentence for rape of a child under age 12; it has since been amended to apply where the child rape victim was under 13.) Those two Louisiana inmates are the only ones in the Nation facing execution for a non-homicide crime.

In upholding Kennedy's death sentence and the state law under which it was imposed, the Louisiana Supreme Court said that the Supreme Court's Coker v. Georgia decision invalidating capital punishment for rape only applied to crimes in which the victim was an adult. It then went on to apply the Supreme Court's Roper test to judge the validity of the sentence. It found a trend toward allowing capital punishment for rape of a child in the fact that five states adopted such laws following Coker. Nine other states, it noted, still have on their statute books laws that allow a death sentence for a non-homicide crime. Moving on to the second part of the constitutional test, the state Supreme Court found that the severity of the crime of raping a child justified a conclusion that execution was not too severe a punishment.

Petition for Certiorari

Patrick Kennedy's lawyers appealed his case to the Supreme Court on Sept. 11, 2007, raising two issues: first, whether the death penalty for rape of a child was "cruel and unusual punishment" in violation of the Eighth Amendment, and, second, whether Louisiana's law did not narrow the class of those eligible for that penalty because it applied whenever a rape was committed, and the victim was under 12 years of age.

The petition argued that there is an "overwhelming national consensus that capital punishment is an inappropriate penalty for any kind of rape." It noted that 45 states ban such punishment, and prosecutors and juries in the states that have them "“ aside from Louisiana "“ refuse to impose that punishment. Those facts, it contended, show the rarity of the punishment, rather than establishing a trend toward its revival. The most compelling single fact, the appeal asserted, is that only Louisiana has actually given a death sentence for child rape.

The appeal also argued that it is now well established by Supreme Court precedent that capital punishment is too great a punishment for crimes in which the victim is not killed. Further, the petition also relied upon decisions from other states' supreme courts that have considered the constitutional issue "“ especially decisions in Florida in 1992 and Mississippi in 1989 rejecting the death penalty for raping a child.

The appeal was supported by the National Association of Social Workers and a group of sesual assault crisis centers, by the National Association of Criminal Deense Lawyers, and by a group of public defenders in Louisisna.

In urging the Supreme Court not to hear Kennedy's appeal, Louisiana officials contended that there is a distinct trend across the country to impose death sentences for crimes that do not result in the victim's. Aside from the five states that have adopted capital punishment laws for child rape cases, the state's brief argued that the Justices should also focus on the fact that 15 out of the 38 states that still retain death sentencing, plus the federal government, "authorize some form of non-homicide capital punishment. The state also noted that the number of states with capital punishment for child rape had risen from the five noted by the state Supreme Court, to six, with Texas adopted such a law in 2007.

The state contended that it was not significant that only a few individuals have actually received death sentences for child rape, since some of the states' laws on the subject were adopted only recently. It takes some years for capital cases to reach the penalty phase "“ for example, five years in the case of Patrick Kennedy, the state noted.

Analysis

Since the Supreme Court has not ruled in 31 years on a category of crimes for which a death sentence would violate the Eighth Amendment, there is no firm basis for a projection of what it may now do as it reopens that question in the context of a death penalty for raping a child. Presumably, it will still apply the two-part test that a five-member majority imposed three years ago in Roper v. Simmons (since those five are still on the Court). Because the number of persons so far facing an actual execution for child rape is so small, and since the number of states adopting that specific approach remains small, the Court may have to decide whether to broaden step one on the consensus point to include a survey of the jurisdictions that would execute for any non-homicide crime (a larger number). But, if it does not take that tack, the second step "“ its independent judgment on proportionality "“ could be the key. The language of the Coker plurality opinion in 1977 would seem to counsel against the death penalty for any crime that does not involve the victim's death, but the current Court may experience some temptation to look beyond that consideration to consider the plight of the child victim in particular. If it judges that category of rape to be significantly more severe, it could distinguish Coker by treating it as a decision only about rape of an adult victim. Whether the two newest members of the Court, Chief Justice John G. Roberts, Jr., and Justice Samuel A. Alito, Jr., will exert any noticeable influence on the outcome is uncertain. Justices Antonin Scalia and Clarence Thomas, dissenters in Roper, seem likely to support Louisiana's authority to execute for child rape. The key vote, then, may once more be held by Justice Anthony M. Kennedy "“ the author of Roper.

Merits Briefs

Patrick Kennedy's lawyers, in their brief on the merits, once again relied first on the Coker v. Georgia decision in 1977 and subsequent rulings that "made clear that capital punishment is categorically impermissible for person-on-person violence that does not result in death, and in which the offender does not attempt or intent to kill or display reckless indifference toward human life." That point, if accepted by the Court, would make it unnecessary for the Court to go through the two-part Roper test to weigh the validity of Louisiana's law on death sentences for child rape. Thus, this first point relies upon the notion that the issue is already decided, making the Louisiana Supreme Court appear to have departed from a "well-settled rule." On that point, the brief summed up: "This Court should not deviate from the dictates of Coker and its progeny."

Moving on, though, to the Roper analysis, the Kennedy brief stressed heavily the argument that Louisiana is not only just one of five states that allow capital punishment for raping a child, but that Louisiana's law is the only one in the Nation that could have been used to sentence Kennedy to death. It noted that, in the other four states, such a sentence is available only "in situations where a defendant has a prior conviction for sexual battery or rape of a child." Two of the other four, it added, also require that the defendant have served at least a 25-year sentence for such a crime against a child. The brief also sought to discount the Louisiana argument that it is relevant to consider that death is an available sentence for other crimes "less heinous" than child rape. The brief also recited its argument on the backup point "“ that Louisiana's law is invalid because it does not narrow the class of those eligible for capital punishment for child rape.

The state of Louisiana's merits brief treated the Eighth Amendment issue as clearly still unresolved, suggesting that the Coker decision is not controlling. The Supreme Court in Coker, the brief recalled, made 14 separate references to the fact that the victim in that case was an adult woman. Thus, the state asserted, the Court there "refrained from deciding whether the death penalty is grossly disproportionate for the rape of a child."

Turning to the Roper inquiry, the state insisted that there are now six states that punish child rape with a death sentence. It added Georgia to the list cited by Kennedy's counsel, arguing that the punishment still remains available there in the wake of a recent state Supreme Court ruling. The state also added a seventh state, Florida, noting that there remains on the books such a law even though the state Supreme Court has struck down that penalty for the rape of a child. The state also sought to rely upon the fact that legislation to permit the penalty for that crime is now under consideration in state legislatures in Alabama, Mississippi and Missouri. Adding all of this together, the state asserted, provides "powerful evidence that this Court should not be quick to infer that there is entrenched opposition to capitalizing child rape in states which do not yet have such laws."

Again, as in its earlier response brief, the state asserted that the Court should also look to the laws of 14 states and the federal government that authorize a death sentence for other crimes that do no involve the killing of the victim. And, the state introduced a new argument, noting that the recent spate of laws (going by the name "Megan's Laws") that provide special punishment for sex offenders, particularly those who target children. Louisiana also relied upon scientific and medical evidence of the harms done to children who are raped. The state's brief spent little effort on answering the claim that Louisiana's law does not narrow the eligible class of defendants.

Kennedy's challenge is supported by amici that include those that were on his side at the petition stage, plus civil liberties and minority rights groups, and a list of British lawyers, scholars, former Law Lords, and British law associations.

Louisiana's side drew the support of eight states "“ including three of the four that now have laws that would punish child rape with death (Oklahoma, South Carolina and Texas), plus six others: Alabama, Colorado, Idaho, Mississippi, Missouri and Washington. Their briefs argued that the Court should preserve "the ability of democratically elected legislatures to enact laws" reflecting current moral judgments against "the unique and horrific crime of aggravated child rape."

The state also has the separate support of the governor of Missouri and members of its state legislature.

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