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Supreme Court: Death Penalty for Child-Rape Barred as Cruel and Unusual Punishment

by John E. Dannenberg

A divided U.S. Supreme Court ruled 5-4 on June 25, 2008 that a Louisiana statute imposing the death penalty for rape of a child, absent murder or an intent to kill, was unconstitutional because it amounted to cruel and unusual punishment in violation of the Eighth Amendment.

Patrick Kennedy, convicted of the aggravated rape of his 8-year-old stepdaughter (identified as L.H.), was sentenced to death under Louisiana Revised Statutes § 14.42, which authorized capital punishment for rape of a child under 12 years of age. The repulsive nature of Kennedy’s brutal crime understandably resulted in the maximum penalty being imposed, and he was placed on death row.

Kennedy had called 911 to report that two neighborhood boys had raped L.H. and then rode away on a bicycle. Police, arriving in just minutes, found L.H. on her bed, wearing a T-shirt and wrapped in a bloody blanket. She was bleeding profusely from her vagina. Kennedy told police he had carried her in from the yard and wiped blood off her in a wash basin (which prevented later DNA collection). At the hospital, doctors found that L.H. had been torn open to her rectum and required emergency surgery.

Extensive detective work debunked Kennedy’s story. The alleged bicycle was found in a neighbor’s yard, with its long-flat tires and frame covered with cobwebs. Blood on the underside of the mattress convinced police the rape had taken place in the bedroom. Kennedy had phoned his employer hours earlier to say he was “unavailable to report.”
Another earlier call had requested a carpet cleaning service to come over immediately to remove bloodstains. Over a month later, a still-traumatized L.H. confided to her mother that Kennedy had raped her.

The only question on certiorari to the Supreme Court was whether capital punishment for a crime less than murder, such as aggravated rape, violated the Eighth Amendment’s prohibition against “all excessive punishments, as well as cruel and unusual punishments that may or may not be excessive,” citing Atkins v. Virginia, 536 U.S. 304 (2002).

The Court reviewed prior case law defining the standard as an evolving one that “must change as the basic mores of society change.” The majority stated, “Evolving standards of decency must embrace and express respect for the dignity of the person, and the punishment of criminals must conform to that rule.” In turn, punishment “is justified under one or more of three principal rationales: rehabilitation, deterrence, and retribution.
When the law punishes by death, it risks its own sudden descent into brutality, transgressing the constitutional commitment to decency and restraint.”

The majority opinion, authored by Justice Anthony Kennedy, used this moral guidance to conclude that “a death sentence for one who raped but did not kill a child, and who did not intend to assist another in killing the child, is unconstitutional under the Eighth and Fourteenth Amendments.”

An acrimonious dissent authored by Justice Alito disputed whether there was either “a national consensus” or “evolving standards of decency” that would absolutely bar the execution of such an offender, “no matter how sadistic the crime” or “how heinous the perpetrator’s prior record may be.”

Admittedly, child-rape is the most reviled crime not only in free society but also in prison – where it sometimes results in a “death sentence” imposed by other prisoners. Whatever the “evolving standards of decency” may be, a likely byproduct of the ruling in this case is that states will react by enacting tougher non-capital penalties for such heinous crimes. Prior to this ruling several states had enacted the death penalty for child rape offenses. See: Louisiana v. Kennedy, 128 S.Ct. 2641 (2008).

Following the Supreme Court’s ruling, attorneys noted that none of the parties in the case, nor the Court itself, had addressed the fact that the death penalty could be imposed in rape cases under the Uniform Code of Military Justice – which was a factor that should have been considered in the “national consensus” analysis. Perhaps because no one, not even the government, considers military law to be determinative of anything.

On October 1, 2008 the Supreme Court denied a petition for rehearing, and ordered only that a footnote be added to the original ruling relative to the penalty for rape under military law. See: Kennedy v. Louisiana, Case No. 07-343 (U.S.Supr.Ct.); 2008 WL 4414670.

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Related legal case

Kennedy v. Louisiana