Kennedy v. Louisiana

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.

[edit] Brief in Opposition/Amici Analysis

Louisiana officials have urged the Supreme Court to allow the state to continue to seek the death penalty for those convicted of child rape. In a brief in opposition filed on Wednesday, the state argued that there is a distinct trend across the country to impose death sentences for crimes that do not result in death of any victim. In addition, it said, more states are opting to pass laws to make child rape a capital crime.

The case of Kennedy v. Louisiana (docket 07-343) poses a direct test of whether states may constitutionally impose the death penalty for any crime other than murder. And, in particular, it tests whether a death sentence is a disproportionate penalty, under the Eighth Amendment, for raping a child.

The case involves Patrick Kennedy, sentenced to death after being conviced of raping his eight-year-0ld stepdaughter. At the time of his conviction, Louisiana law allowed a death sentence for raping a child under age 12; the law has since been changed to allow that sentence when the child is under age 13. Kennedy is the only individual now facing a death sentence in any state for a non-homicide, his lawyers have told the Court.

The state said that the Court, if it agrees to hear the case, should focus not only on how many states treat rape of a child as a capital crime, but also on a trend toward applying the death sentence to more crimes where the victim is not killed. Five states, like Louisiana, now have capital punishment for child rape, all enacted since 1997 with the most recent, in Texas, in 2007.

Moving beyond that specific crime, the state’s brief said, 15 out of the 38 states and the federal government – 41 percent of the jurisdictions, it notes — “authorize some form of non-homicide capital punishment.” That includes treason, espionage, aircraft piracy, aggravated kidnapping, and some drug trafficking crimes.

“The trend toward capitalization of non-homicide crimes, child rape in particular, is significant,” the state asserted.”Six states have now enacted the death penalty for child rape after this Court [in Coker v. Georgia, 1977] held that the death penalty for rape of an adult woman was unconstitutional.”

While Kennedy is the only death row inmate sentenced for child rape, that does not mean that juries are unwilling to impose the sentence for that crime, the state argued. Three states have had their laws on this subject only for two years, it noted.

Arguing that such a sentence fits the crime, the state said that “the harm inflicted upon a child when raped is tremendous,” and that “sex offenses against children cause untold psychological harm not only to the victim but also to generations to come….Execution of child rapists will serve the goals of deterrence and retribution as well as the execution of first-degree murderers.”

Kennedy’s appeal is now supported by the National Association of Social Workers and a group sexual assault crisis centers, arguing that the Louisiana law goes too far by providing for a possible death sentence for any act of oral, anal or vaginal sex with a child under age 13 and thus will encourage offenders “to kill their victims.” Another amicus, the Narional Association of Criminal Defense Lawyers, argued that the unreliability of child victim testimony makes it “far too likely” that the death sentence may actually be imposed on the innocent. A group of public defenders in Louisiana also supported the appeal, arguing that they must prepare to defend anyone accused of child rape as if it were a capital case, even though prosecutors often reduce the charge to a non-capital offense; public defenders thus must spend limited resources in cases that may never turn out to be capital, after all. Thus, they contended, they need the uncertainty over the validity of the Louisiana law cleared up as soon as possible.

[edit] Argument Preview

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.

[edit] 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 life…We 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.

[edit] 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.

[edit] 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.

[edit] 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.

[edit] Oral Argument Recap

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.

[edit] Opinion Analysis

[edit] Links and further information

[edit] Press

• LAT: Supreme Court upholds death penalty ban in the rape of a child (October 2, 2008)
• WaPo: Court Won’t Reconsider Ban on Execution for Child Rape (October 2, 2008)
• NYT: Court Won’t Revisit Death Penalty Case October 1, 2008)

• Decision Related Articles available here (

• ABA Journal: Death for Rape, an Echo of the Past (April 2008)

[edit] Blogosphere

Decision Related Links

• Prawfsblawg: Kennedy v. Louisiana Decided

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