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Court to rule on death penalty for child rape

UPDATE 9:15 p.m. Attorneys for Patrick Kennedy have notified the Supreme Court that, after the petition for review was filed, a second man had been sentenced to death in Louisiana for rape of a child. The letter to the Court can be found here.


The Supreme Court agreed on Friday to decide whether it is unconstitutional to impose a death sentence for the crime of child rape. This was one of six new cases granted review.  The earliest any of these cases will be argued probably is the Court’s April sitting, beginning April 14.

The new capital punishment case involves Patrick Kennedy, a 43-year-old black man from suburban New Orleans — the only individual in the nation now on death row for committing a non-homicide crime.  He was sentenced to die after being convicted of raping his eight-year-old stepdaughter.  The case is Kennedy v. Louisiana (07-343).  Louisiana is one of only five states that make child rape a capital crime.  Kennedy’s lawyers argued that, in the other four states with such laws, prosecutors refuse to seek the death sentence for such crimes. They contend that enforcing a death sentence for the crime of child rape contradicts the Supreme Court’s 1977 decision (Coker v. Georgia) barring the death penalty for rape — a decision involving rape of an adult. The appeal also contends that a death sentence for child rape is so rare that it is cruel and unusual punishment under the Eighth Amendment.

In a second sentencing case granted review, the Court said it would decide whether a judge must give both sides notice in advance of imposing a criminal sentence that departs from the Sentencing Guidelines.  The case is Irizarry v. U.S. (06-7517). The appeal asks whether such notice is required when the planned departure is based on a rationale not discussed in a presentence report or in filings before the sentencing hearing.  The Eleventh Circuit Court ruled that such notice is not required because, now that the Sentencing Guidelines are advisory (under Booker v. U.S., 2005), both the prosecution and the defense will be aware that the sentencing court may depart from the Guideline range in using its discretion to consider all sentencing factors. Other Circuit Courts still require the notice. The Court thus will continue to explore the fallout from its recent Guidelines rulings.

In a third sentencing case accepted for review, the Court indicated it will decide whether a federal appeals court may increase a criminal sentence on its own, if the government has not filed an appeal.  The case is Greenlaw v. U.S. (07-330).

Here in summary are the other three cases granted Friday:

Bridge v. Phoenix Bond & Indemnity (07-210) — grant limited to the question of whether reliance is a required element of a civil racketerring (RICO) claim based on mail fraud, and, if so, whether the plaintiff must show that he or she directly relied on the misrepresentation.  The Court twice before has agreed to decide the reliance question, but was unable to reach the issue in those cases.

Plains Commerce Bank v. Long Family Land & Cattle (07-411) — whether Indian tribes’ courts have authority to decide a civil lawsuit that involves business dealings between a company owned by members of the tribe and a bank that owns land on a reservation, but itself is not owned by a tribal member.

Sprint Communications v. APCC Services (07-552) — whether the assignment of a legal claim to another, who will not benefit directly from the lawsuit, gives the assigned party standing to sue.  The case involves a dispute over lawsuits filed by a company that has been assigned the right to sue to collect fees that the telephone companies are said to owe to owners and operators of pay telephones.