A Deal with Death
No one in the United States has been put to death for a crime other than murder since 1964.
But if the state of Louisiana has its way, convicted child rapist Patrick O. Kennedy would become the first inmate in more than four decades to be executed for a crime in which the victim wasn’t killed. The state supreme court is expected to decide Kennedy’s fate this year.
In pressing for Kennedy’s execution, prosecutors also have put Louisiana on a collision course with the U.S. Supreme Court, which in 1977 banned executions of rapists who don’t kill. That means prosecutors and politicians in states with similar laws likely will follow Kennedy’s case as it winds its way through the system toward an all but certain date with the justices.
“They’ll probably beat us to the Supremes,” concedes Oklahoma state Sen. Jay Paul Gumm, sponsor of a bill signed in June by Gov. Brad Henry that also imposes the death penalty on some child molesters.
CONSTITUTIONALITY IN QUESTION
Kennedy was sentenced in 2003 for the rape of an 8-year-old girl. His lawyers question the constitutionality of the death sentence and raise another issue.
“He says that he did not do it,” says New Orleans appeals lawyer Martin A. Stern, who is handling the sentencing issue.
Louisiana and Oklahoma are among a handful of states to enact laws allowing death sentences for molesters since the Supreme Court reinstated capital punishment in 1976. The issue also surfaced this past fall in governor’s races in at least three states, including Minnesota, which hasn’t had a death penalty statute of any kind since 1911.
Supporters see death for child rapists as the ultimate deterrent and argue that it would encourage more victims to come forward if parole no longer was available to the worst offenders.
“No one is more vulnerable than a child,” says Gumm, a Democrat from the southern Oklahoma town of Durant. “We allow the death penalty for someone who has killed a body. We shouldn’t allow someone who has killed a soul to escape.”
Besides questioning the constitutionality of such laws, opponents say they could backfire in practice. For one, they say, a child molester with nothing to lose may just go ahead and kill the victim and eliminate the sole eyewitness to an offense that typically occurs only in the shadows.
And because child sexual abuse often happens within families, critics say victims may be reluctant to report it if it means a parent, sibling or other relative could be put to death.
“Legislators who pass these kinds of laws are not doing the child any good deed at all,” says Michael Mears, director of the Georgia Public Defender Standards Council, a state agency charged with ensuring that indigent defendants receive adequate representation.
Though Louisiana inmate Kennedy is the only person thus far sentenced to death under the new laws, critics see the potential for a dangerous unraveling of a long string of Supreme Court precedents that restrict application of the death penalty, including recent decisions banning it for juveniles and the mentally retarded.
“If we’re going to create a whole new class of death penalty defendants, they’re going to have to revisit some of the narrowing they’ve done in the last several years,” Mears says.
PROPORTION AND PUNISHMENT
Before the justices struck down the death penalty in 1972, rape was a capital offense in 16 states. Shortly after the court reinstated capital punishment four years later, Georgia, Louisiana and North Carolina again enacted death penalty statutes for rapists who don’t kill.
The court struck down the Georgia law in 1977, with a plurality of four justices holding that a death sentence for raping an adult woman was out of proportion with the severity of the crime and thus was blocked by the Eighth Amendment’s ban on cruel and unusual punishment.
That was in addition to Justices Thurgood Marshall and William J. Brennan Jr., who wrote separately because they viewed the death penalty as unconstitutional in all circumstances. Coker v. Georgia, 433 U.S. 584.
“Rape is without doubt deserving of serious punishment,” Justice Byron R. White wrote for the plurality. “But in terms of moral depravity and of injury to the person and to the public, it does not compare with murder, which does involve the unjustified taking of human life.”
The justices erased the Louisiana and North Carolina statutes on other grounds. State supreme courts in Tennessee and Mississippi invalidated later death statutes without reaching the Coker issue. And though the Florida Supreme Court in 1981 used Coker to strike down yet another death penalty scheme, legislators left it on the books anyway—a move skeptics say was designed to give prosecutors more leverage in plea bargaining.
Though the victim in Coker was a 16-year-old girl, the justices, without explanation, repeatedly referred to the issue before them as “the rape of an adult woman.” And that’s how legislators distinguish the new death penalty laws for child rapists, arguing that child molestation leaves deeper scars than other sexual attacks.
In 1995, Louisiana enacted the first new law, which calls for either death or a life sentence when the victim is younger than 12. The Louisiana Supreme Court held the law constitutional the next year in combined pretrial appeals of two defendants facing possible death sentences. State v. Wilson, 685 So. 2d 1063 (1996).
In firming up their reasoning, the Louisiana justices suggested that their law stood in the vanguard of a wave of similar statutes to come. Under the Supreme Court’s death penalty jurisprudence, the number of states that engage in a particular practice weighs heavily.
“There is no constitutional infirmity in a state’s statute simply because that jurisdiction chose to be first,” the Louisiana court stated. “Statutes applied in one state can be carefully watched by other states so that the experience of the first state becomes available to all other states.”
The decision hardly generated a tsunami of death statutes aimed at child molesters. Besides the uncertain Florida statute that still hangs around, only Montana immediately followed the Louisiana lead in 1997 with a law targeting repeat offenders who rape children under 16 and cause “serious bodily injury.” In addition, the offender must be over 18 and at least three years older than the victim.
Only last spring did South Carolina and Oklahoma follow suit with laws also designed for repeat offenders. The South Carolina statute, though, limits capital punishment to cases where the victim is under 12, while the Oklahoma version raises the age to 14.
Like Louisiana’s law, the remaining four statutes on the books allow jurors to impose life sentences in cases where they deem death inappropriate.
Oklahoma sponsor Gumm figures the Sooner State’s law stands a good chance of survival because the Supreme Court in recent years has leaned increasingly toward states’ rights over the power of the federal government.
Gumm especially likes Chief Justice Warren E. Burger’s dissent in Coker, in which he chastised his colleagues for substituting their policy judgment for that of Georgia legislators.
“I believe the court, with its current configuration, would be more inclined to Chief Justice Burger’s position,” Gumm says.
After the Louisiana court upheld the statute, prosecutors in both cases eventually took the death penalty off the table in plea deals.
Then the Kennedy case came along.
If Kennedy’s predicament is not bad enough in itself, defense lawyer Stern sees wider problems arising from inconsistencies among the few statutes in other states, in particular the varying age requirements for victims.
Moreover, in Louisiana, where first offenders are eligible for death, the state allows for only two aggravating factors to help jurors decide which child rapists should die and which ones should live.
Both factors—the victim’s age and the nature of the attack—also are by definition elements of the underlying offense.
“You have to draw the line,” Stern says. “The only place to draw the line is at homicide. When you draw the line anywhere else, you step on a very slippery slope.”