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Analysis: Limit may be imposed on death penalty for child rape


(Note to readers: The following post is based upon the written transcript of the oral argument in Kennedy v. Louisiana, 07-343. Because of the release of the Court’s opinion in Baze v. Rees, 07-5429, the writer was unable to attend the Kennedy argument.)

When the Supreme Court debates and then casts its first votes in private on Friday in the case testing the constitutionality of the death penalty for the crime of raping a child, the key points at issue may well be the meaning of a 1977 decision (Coker v. Georgia), and the uniqueness of the Louisiana law and, especially, its apparent lack of limits on its reach. Those were the obvious highlights of the 64-minute hearing the Justices held in Kennedy v. Louisiana. A further point of seeming importance: Justice Anthony M. Kennedy, perhaps once again holding the decisive vote, spent considerable effort looking for ways to allow a death sentence for child rape, but only in narrow, strictly confined circumstances.

The hearing moved back and forth between pondering the scope of Coker — a case in which only a plurality of four Justices spoke directly on the principal conclusion — and weighing the sweeping nature of the Louisiana law at issue. The Court appeared less interested in whether the nation’s state legislatures were embarked on a trend to imitate — or not — Louisiana; in other words, the question of whether a trend is running against, or in favor of, executing a rapist whose victim is a child. These impressions suggested that the challengers to Louisiana’s law had better success with their backup argument than with their primary claim.

At the opening of the argument by Stanford law professor Jeffrey L. Fisher, representing death-row inmate Patrick Kennedy, he summarized his two points: first, that there is a “national consensus” against executing those who commit child rape, and, second, Louisiana alone does not limit who among child rapists would actually be eligible for the death penalty — that is, that state’s law lacks a narrowing factor.

His second point immediately became the focus of the questioning, as the Justices explored how to define crimes that are serious enough to justify capital punishment, yet do not sweep so broadly that anyone committing the crime, no matter what the specific circumstances, would be eligible for execution. When Fisher sought to make his point by using the situation that existed in the case that led to the Court’s 1977 Coker decision, striking down the death penalty for rape, that opened up the other layer of emphasis: just what does Coker stand for?

Justice Ruth Bader Ginsburg noted that the case was decided by only a plurality, and that Justice Lewis F. Powell’s separate concurrence left open the prospect that death could be imposed if the rape were “outrageous” and caused “lasting harm” to the victim, even though she did not die. Fisher was saying, Ginsburg told him, that “the Court held that you cannot have a death penalty for rape. And I suggested that that’s not so clear.” Justice Antonin Scalia chimed in to show he had the same doubts about the scope of that ruling.

Those exchanges may turn out to be significant because, if Coker does not, in effect, settle the issue in Kennedy, then Fisher’s side can win only if he convinces the Court that there is, indeed, a national consensus against Louisiana’s approach, or that Louisiana’s law is so close to being limitless that it has what he called “freakish” results due solely to the caprice of juries on who gets executed.

Chief Justice John G. Roberts, Jr., promptly took the case back to the consensus issue, making it abundantly clear that he does not see a consensus running against Louisiana’s approach, but there may, in fact, be an opposite trend. “More and more states are passing statutes imposing the death penalty in situations that do not result in death,” Roberts suggested. Scalia added his own skepticism about the consensus argument.

Ginsburg at that point began discussing whether the meaning of the Coker decision had a bearing on the consensus issue. As Ginsburg put it, one of the briefs from amici states suggested that states might not be passing laws like Louisiana’s because they were reading Coker to mean they could not, that “Coker seems to cover the waterfront,” and she put it, adding: “We cannot know if there is a consensus one way or another until this Court clarifies what Coker stands for.” Fisher resisted, but the damage had been done. The Chief Justice immediately picked up on Ginsburg’s point, as Justice Kennedy would later, during the argument by the attorney for Louisiana.

Just before Fisher was to finish his initial argument, Justice Kennedy asked him to discuss how the Louisiana death law for child rape could be narrowed. It could be narrowed, the Justice said, by imposing death only for a repeat offender (as other states with the death penalty for child rape do), but are there any other ways to narrow it? Fisher said it could be limited to situations that were “particularly heinous…something like torture or extraordinarily serious harm.”

Louisiana’s lawyer, assistant district attorney Juliet L. Clark of Gretna, opened by a graphic description of the severe injuries done to the child rape victim in Patrick Kennedy’s case — an indication that the state’s argument was going to be focused mainly on how deserving Kennedy was of capital punishment.

Justice Stephen G. Breyer soon brought up a “slippery slope” point, suggesting that, if the Court were to uphold a death penalty for a crime in which the victim was not killed, “I can think of horrible things all over the place” that the states would begin to make capital crimes. Legislatures all over the country, Breyer said, would take up the seeming invitation. The Justice also discussed a variety of molesting instances which, if committed against a child, would qualify the perpetrator for punishment, as a rapist, with death.

Somewhat surprisingly, Justice Scalia suggested to Clark that, while he did not agree with the Court’s past precedents on the need to narrow those who would be eligible for capital punishment, that requirement was there as a limiting factor on jury discretion. With some help from the Chief Justice, Clark said that Louisiana’s death for child rape law did provide for sufficient narrowing, because it limited it to children victims of a young age. She got into trouble with Justice David H. Souter in trying to argue that the child rape law was limited in the same way that Louisiana limited punishment for murder. The discussions on that point were not helpful to the state’s argument, since they tended to indicate that the child rape law was, in fact, not limited by a narrowing factor.

Supporting the Louisiana law as counsel for eight amici states, Texas’ state solicitor general Ted R. Cruz quickly ran over a general argument that there was, indeed, a trend toward laws to punish more severely the crime of “violent child rape,” but then moved on to the meaning of the Coker precedent. It was immediately apparent that he had picked up on the Court’s puzzlement over how to read that ruling. Cruz suggested that the precedent “has been under a cloud of confusion.” The state legislatures are confused about it, believing that it took away their option to punish the crime of child rape with death, he said.

He encountered some difficulty when Justice Kennedy asked him to comment on whether prosecutors are using their discretion to obtain a death sentence for child rape as a way to obtain plea bargains, so that the law is not being used for “only the most egregious cases.” It was another variation on the point about whether the Louisiana law had any limits to it. Cruz did not dispute the point, but went on to argue that the two individuals who had received the death sentence in Louisiana for child rape had “committed crimes that are just unspeakable.” He then moved into an argument that buttressed his point about the consensus in favor of punishing “predators that seek out young children and do abominable things to them. And that’s why legislatures are acting.” And, soon, he returned to his theme about the “unspeakable crime” that Patrick Kennedy had committed.

Before Cruz had finished, Justice Kennedy pressed him with a hypothetical about how, if Cruz were asked to draft the statute, how he would insert “limiting categories.” Cruz answered that prior conviction as a predicate for a death penalty for child rape would be one limitation. Another would be to limit it to “especially heinous or vile rapes.” And a third was the factor of multiple child victims.

In a brief rebuttal, Fisher melded his two main arguments, suggesting that there was no trend toward enactment of death sentencing laws for child rapists when the perpetrator had not committed prior crimes. Other states have passed laws in the child rape context, but those laws are “all about recidivism,” Fisher said. “Louisiana is not part of that trend. Louisiana stands alone.”

The Court is expected to decide the case in late spring or early summer.