Death penalty for child rape challenged
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.
Suppose that SCOTUS denies cert in this case. Would review of these issues be available for collateral attack? It certainly isn’t clear to me that it would be under prevailing habeas law.
Comment by Andrew Oh-Willeke — September 11, 2007 @ 4:24 pm
I had a post about Coker and its relation to the instant case here back when the LASC decided it, concluding that “[w]hile the Coker plurality may have spoken in terms of an ‘adult woman,’ the principles enunciated in that case apply with no less force to all rape everywhere, regardless of the characteristics of the victim,” that no fewer than three and perhaps as many as eight members of the Coker court so understood the case, and thus “the Supreme Court cannot distinguish Coker in any meaningful sense, and must therefore either reverse the Louisiana Supreme Court, or grasp the nettle and overrule Coker.”
Comment by Simon Dodd — September 12, 2007 @ 9:30 am
Andrew, as this is a substantive limitation on the death penalty and not a procedural requirement, the Teague rule would not prevent its being made and applied on habeas corpus. See Penry v. Lynaugh, 492 U.S. 302, 329-330 (1989).
Whether this “first exception” to Teague (more recently characterized as a limitation on the scope of the Teague rule) applies to the deference standard of 28 USC 2254(d)(1) remains undetermined. If it does not, then I think the answer to your question would be no. Although the Louisiana Supreme Court’s interpretation of Coker differs from Simon’s, above, it would be quite a stretch to call that interpretation unreasonable.
Comment by Kent Scheidegger — September 12, 2007 @ 11:40 am
Whatever the constitutional status of applying the death penalty for child rape practically it is surely a bad idea.
I mean this makes sure that if you rape a child you have every incentive to kill them and get rid of the evidence so you will be less likely to be caught and if so you can claim it was only murder 2.
–Peter Gerdes
Comment by logicnazi — September 12, 2007 @ 2:35 pm
If you are raping young children, you are already beyond the realm of logic, nazi or otherwise.
Comment by Roger Friedman — September 13, 2007 @ 11:52 am
When we first argued the unconstitutionality of death as a penalty for child rape in 1996 before the Louisiana Supreme Court, our most fervent supporters were children’s rights and women’s rights advocates. They filed amicus briefs asking that the death penalty be held unconstitutional. Given the Louisiana Supreme Court’s prediction in 1996 that our state would lead the nation to a reassessment of the penalty for child rape, it may be significant that most of the other states which have enacted laws allowing the death penalty for child rape allow that penalty only when the defendant previously has been convicted of a similar crime. While I hope the Supreme Court will grant writs and hold the Louisiana law unconstitutional (rape is also defined as including oral sex when the victim is under twelve), I fear that the Court’s comments might leave the laws standing in other states.
Comment by Dwight Doskey — September 13, 2007 @ 12:17 pm
No, Roger, many very evil people are quite rational. Peter is correct. Punishing both rape and rape/murder by death is a bad idea, just as punishing them both by a long prison sentence is a bad idea. A differential is needed to provide an incentive not to kill the victim.
The folks at DPIC fully endorse this logic in the first case but deny exactly the same principle in the second case.
Comment by Kent Scheidegger — September 13, 2007 @ 7:24 pm
Kent –
I thought that might get a rise out of you. But I didn’t think you’d want to join issue over evil. I thought everyone in the legal arena accepted the fact that the lawful/unlawful dimension is not congruent with the good/evil dimension. Even in the penalty phase of a death case, we are looking at a redeemable/irredeemable dimension, or in the commitment phase of a Kansas-style sex offender proceeding, we are looking at a treated/untreatable dimension.
Sex is very powerful juju, it accumulates a lot of social and personal overlays before emergeing as a person’s sexuality. Sometimes these overlays are so powerfully twisted that they express themselves as child rape. (Here as in my previous comment I am talking about forcible penile penetration, I am not talking about crimes based on age of consent or some juiced-up definition of sexual conduct.) That this urge can be so powerful as to overcome all conditioning to the contrary indicates to me that the decison over whether to kill the child as well comes from the content of the belief structure rather than any external factor.
So in the spirit of the High Holy Days, let us all atone for our sins, pray to be delivered from evil, and then get on with representing our clients.
Comment by Roger Friedman — September 14, 2007 @ 10:17 am
Roger, a single word seems to have sent you off on a tangent. The question was whether people who commit child rape are so far gone mentally as to be undeterrable, i.e., “beyond the realm of logic.” Although a few might be, for the most part, they are not. While a person who would want to do that may have a mental disorder of some kind, it does not follow that he lacks free will and the capacity to refrain. Hence, deterrence remains a valid purpose of punishment.
While “unlawful” and “evil” are not the same, they do have a lot of overlap, particularly in the malum in se crimes that are the main concern of my organization.
Comment by Kent Scheidegger — September 14, 2007 @ 12:28 pm
Kent –
I thought that might get a rise out of you. But I didn’t think you’d want to join issue over evil. I thought everyone in the legal arena accepted the fact that the lawful/unlawful dimension is not congruent with the good/evil dimension. Even in the penalty phase of a death case, we are looking at a redeemable/irredeemable dimension, or in the commitment phase of a Kansas-style sex offender proceeding, we are looking at a treated/untreatable dimension.
Sex is very powerful juju, it accumulates a lot of social and personal overlays before emergeing as a person’s sexuality. Sometimes these overlays are so powerfully twisted that they express themselves as child rape. (Here as in my previous comment I am talking about forcible penile penetration, I am not talking about crimes based on age of consent or some juiced-up definition of sexual conduct.) That this urge can be so powerful as to overcome all conditioning to the contrary indicates to me that the decison over whether to kill the child as well comes from the content of the belief structure rather than any external factor.
So in the spirit of the High Holy Days, let us all atone for our sins, pray to be delivered from evil, and then get on with representing our clients.
Comment by Roger Friedman — September 14, 2007 @ 12:35 pm
Roger, I waited a day to give you a chance to explain sua sponte, but now I’ll ask. Why did you post the same comment again?
Comment by Kent Scheidegger — September 15, 2007 @ 8:19 pm
Perversity of digital systems
Comment by Roger Friedman — September 17, 2007 @ 12:09 pm
Really, Kent? Punishing violent crime by long prison sentence is a “bad idea”? Given that the death penalty can be argued to be barbaric, so we’ll take that out of the equation, what else would you do with violent offenders? I haven’t seen a “differential” incentive yet that makes any sense. Another facet is, of course, that violent offenders need to be removed from society to protect the innocent. While there are rare rehabilitatable exceptions, there’s no better way to remove them yet, in a general sense, than long incarceration or execution.
Comment by Daniel Jackson — October 11, 2007 @ 11:54 am