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 (found here) 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 petition, filed Sept. 11, is discussed in this post, which includes links to the petition and to the Louisiana Supreme Court decision upholding the law at issue.

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.

The briefs of amici can be found here and here and here.

After a reply brief is filed by Kennedy’s lawyers, the case will be ready for the Justices to consider — perhaps as early as December.

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