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U.S. Supreme Court

Kennedy Questions Sweep of Louisiana’s Death Penalty for Child Rapists

Posted Apr 17, 2008 12:40 PM CDT
By Debra Cassens Weiss

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In oral arguments yesterday, Justice Anthony M. Kennedy questioned lawyers about possible ways to narrow Louisiana’s law imposing a death penalty for child rapists.

Kennedy is a possible swing voter in the case, SCOTUSblog reports. During the arguments he “spent considerable effort looking for ways to allow a death sentence for child rape, but only in narrow, strictly confined circumstances,” the blog says.

The petitioner in the case is Patrick Kennedy, who is on death row for raping his 8-year-old stepdaughter, McClatchy Newspapers reports. He was represented by Stanford law professor Jeffrey Fisher.

The court is weighing whether its 1977 Coker v. Georgia decision, which struck down the death penalty for a man who raped a 16-year-old girl, bars capital punishment in cases involving the rape of younger children. Coker was a plurality decision, noted Justice Ruth Bader Ginsburg. Justice Lewis F. Powell’s separate concurrence had suggested that the death penalty would have been permitted if the rape were “outrageous” or caused lasting harm to the victim.

Justice Kennedy began his discussion of how to limit Louisiana’s law by suggesting it could have imposed the death penalty only for repeat offenses, as four other states do that allow capital punishment for child rape, according to SCOTUSblog. Then he asked Fisher if there are other ways to restrict child rape cases permitting the death penalty.

Fisher said it could be limited to situations that were “particularly heinous, … something like torture or extraordinarily serious harm.”

"How would you describe a particularly heinous rape of a child under 12?" asked Justice Antonin Scalia. "What would make it particularly heinous?"

It would be heinous, Fisher said, if the defendant had engaged in other criminal activity.

Fisher had made a two-pronged argument, telling the justices that Louisiana’s law is too broad and there is a “national consensus” against executing people for rape.

The consensus argument ran into some problems when Chief Justice John G. Roberts Jr. questioned the assertion. “The trend ... has been more and more states are passing statutes imposing the death penalty in situations that do not result in death," Roberts said.

The four other states that permit capital punishment for child rape are Montana, Oklahoma, South Carolina and Texas, the Associated Press reports. No child rapists have yet been sentenced to death in those states.

The case is Kennedy v. Louisiana.

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