By the end of June, the United States Supreme Court will release its decision whether it is unconstitutional to impose capital punishment on child rape. It will be a response from an appeal passed by a man convicted and sentenced to death for raping his then eight-year-old stepdaughter. This man claims that the penalty of death is excessive and is a “cruel and unusual punishment” for the crime of rape that is in violation of the Eighth Amendment. There were none who was executed by the government for a crime where the victim did not die; only two, both of which are from Louisiana, are in death row who were convicted of rape. The last state execution for a crime of rape was back in 1964. In 1977, the US Supreme Court, in their decision with Coker v. Georgia, barred the death penalty on rape cases, at least for the rape of an adult woman. The case of Kennedy v. Louisiana will be the first in three decades to discuss the scope of the death penalty for rape cases. It questions whether the Eighth Amendment’s Cruel and Unusual Punishment clause permits a state to punish the crime of rape of a child with the death penalty and, if so, whether Louisiana’s capital rape statute violates the Eighth Amendment insofar as it fails genuinely to narrow the class of such offenders eligible for the death penalty.
In March 2, 1998, Patrick Kennedy reported the rape of his stepdaughter by two boys who fled the crime scene on a bicycle. There were, however, circumstancial evidences that the assailant was, indeed, Mr. Kennedy himself. He was apprehended and charged with aggravated rape on March 10. He was convicted and sentenced to death by the federal state court, wehere he denied his guilt, in 2004. The conviction and sentence was later affirmed by the Louisiana Supreme Court on May 22, 2007. The Louisiana Revised Statute 14:42, from which Kennedy was convicted under, provides that a person could be convicted of aggravated rape of a child under 12 and be sentenced with death penalty if that person had anal or vaginal intercourse with that child. Louisiana’s conviction was from the grounds that Kennedy had raped the child “so brutally that he tore entire perineal opening from her vaginal opening to her anal opening. He tore her vagina on the interior such that it separated partially from her cervix and allowed her rectum to protrude into her vagina” (United States Supreme Court [USSC] 2008a)
Five other states—Montana, South Carolina, Oklahoma, Georgia and Texas—allow the death penalty for child rape. Those states, however, unlike Louisiana, only impose the death penalty for repeated offenders of child rape. Defenders state that the death penalty imposed on Kennedy violates the Eight Amendment for two reasons: first, there is a long-standing national consensus against the death penalty being imposed on child rape cases; second, Louisiana’s capital rape law violates the narrowing jurisprudence.
Defenders of Kennedy assert the US Supreme Court decision in Coker v. Georgia where death penalty was considered to be an excessive punishment for the crime of rape when the victim is left alive. Louisiana states that the provision left by Coker was applicable only to adult women, where it was referenced fourteen times. Although, the victim in Coker was only 16 at the time of the crime, she was already married. The long-standing national consensus that the defendants are using against the Louisiana state law came from the Court’s decision in Roper v. Simmons where the justices applied the concept of an “evolving standards of decency” which is evident from a national consensus. The concept of national consensus was also used in Atkins v. Virginia. Both cases deal with the imposition of death penalty for capital crimes committed by the mentally ill in Atkins and by juvenile aged under 18 in Roper, where the Supreme Court decided against the imposition of death penalty for such offenders. The case of Kennedy v. Louisiana is unique in the sense that while Roper and Atkins focused on the offenders, Kennedy focuses on the victim.
In recent death penalty cases involving mentally retarded and juvenile offenders, both Justices Scalia and Thomas dissented with the majority vote in favor of the offenders. This may point to both of them voting in favor of Louisiana in the Kennedy case. Furthermore, Justice Scalia is a known advocate of the death penalty. He states that “deservedness of the most severe retribution [the death penalty], depends not merely (if at all) upon the mental capacity of the criminal … but also upon the depravity of the crime” (Randall 2002) referring to Atkins. He further states that the government has its moral authority from God “to execute wrath, including even wrath by the sword, which is unmistakably a reference to the death penalty” (Randall 2002).
Kennedy v. Louisiana may decide once and for all the scope of Coker, whether the death penalty is disproportionate punishment for the crime of child rape. Justice Ginsburg specified that the case of Kennedy cannot be decided until the meaning and scope of Coker has been made clear. She explains that Justice Powell, who concurred in part and dissented in part in Coker, “left open an outrageous rape resulting in serious, lasting harm to the victim… you don’t have an opinion of five justices saying that, in any and all circumstances, rape that leaves the victim alive cannot be punished by the death penalty” (USSC 2008a). In Coker, Justice Powell writes:
“’there is extreme variation in the degree of culpability of rapists.’ The deliberate visciousness of the rapist may be greater than that of the murderer. Rape is never an act committed accidentally. Rarely can it be said to be unpremeditated. There also is wide variation in the effect on the victim. The plurality opinion says that ‘life is over for the victim of the murderer; for the rape victim, life may not be nearly so happy as it was, but it is not over and normally is not beyond repair.’ But there is indeed “extreme variation” in the crime of rape. Some victims are so grievously injured physically or psychologically that life is beyond repair.” (USSC 1997)
Furthermore, the law allows for aggravating circumstances to be considered when appropriate. “With respect to the crime of rape, only three such circumstances are specified: (i) the offense was committed by a person with a prior record of conviction for a capital felony; (ii) the offense was committed while the offender was engaged in another capital felony or in aggravated battery; and (iii) the offense was ‘outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim,’” according to Justice Powell (USSC 1997). That Coker lacks the third requirement caused the Court to decide against the death penalty for the rape case. The Kennedy case, on the other hand, lacks the first two aggravated circumstances which may cause it to loose the death penalty sentence. The question, however, is whether the Court will allow the capital punishment for child rape. Along with the other arguments, Justice Ginsburg may vote in favor of Louisiana on this ground.
Justice Breyer, on the other hand, was critical of the definition of child rape on the statute of Louisiana, as evident from the oral argument of the case. If Justice Breyer and the other Justices will consider that Louisiana’s state law had already created a “narrowly defined substantive crime of aggravated rape punishable by death” as required by the Supreme Court in Justice Powell’s dissenting opinion, then the justices might vote in favor of Louisiana, regardless of the fact that Justice Scalia has already stated in an opinion that the Supreme Court’s jurisprudence “just requires the narrowing of the death penalty… particularly heinous crimes. And one could say that rape is in and of itself particularly heinous, rape of child of 12 or under” (USSC 2008a).
The question whether there really is a “long-standing national consensus against” death penalty being imposed for the crime of child rape could not be answered by counting the states which does not impose it. Chief Justice Roberts commented during the oral argument that it is not only the numbers but the trend of which the states are favoring death penalty for child rape or for any crime that does not result in the death of a victim. This trend can and will be considered in establishing the national consensus. Furthermore, he states that the “society’s recognition of the seriousness of the crime of rape has evolved” (USSC 2008a) since Coker, which is in response to the evolving standards of decency question in child rape. With this coming from himself, the Chief Justice may vote in favor of Louisiana.
Justice Stevens, who was one of the Justices voting against the death penalty for rape cases in Coker, has recently released a statement that the death penalty is unconstitutional. He stated that “imposition of death penalty represents ‘the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes. A penalty with such negligible returns to the state (is) patently excessive and cruel and unusual punishment violative of the Eighth Amendment” (Associated Press [AP] 2008). He however said “that he will respect court precedents in favor of capital punishment” (AP 2008). If and when the other Justices decides that death penalty is proportional punishment for child rape, Justice Stevens may concur despite his opposition to the death penalty. Besides, in the words of Justice Breyer during the oral argument, “I’m not a moralist. I’m a judge. As a judge, I look at the law,” (USSC 2008a) which may be applied to all of the Justices. Despite of the fact that the Court has not approved executions for any crime other than murder for the past 43 years, Justice Stevens and the other Justices may rule out that child rape does not violate the Eighth Amendment because the case of Kennedy has met the restrictions imposed by the same court for allowing the death penalty. Furthermore, it is the same court’s decision that “the death penalty is not invariably cruel and unusual punishment within the meaning of the Eighth Amendment; it is not inherently barbaric or an unacceptable mode of punishment for crime; neither is it always disproportionate to the crime for which it is imposed” (USSC 1977). Justice Stevens, concurred in the recent Baze v. Rees decision of the Supreme Court, of which Chief Justice Roberts wrote, that death penalty by lethal injection does not violate the Cruel and Unusual Punishment clause of the Eighth Amandment.
The decision in Baze v. Rees was also concurred by Justices Kennedy, Alito, Thomas, Scalia and Breyer. It is the most recent Supreme Court decision concerning the death penalty and may give insights on how the Justices will vote on the Kennedy case. The merits of Louisiana stands strong against the defendant’s and may cause the majority of the Justices to, at least, vote in favor of the death penalty to be imposed on child rape. As Justice Ginsburg asserted, the meaning and scope of Coker should be decided first. Kennedy’s sentence may be reversed on the narrowing class principle and the Court may order Louisiana to amend or scrap its statute againsts child rape. It is highly probable, however, that the Court may hold that the death penalty is a proportional punishment not violative of the Eighth Amendment provided with restrictions.
Associated Press. 2008. Stevens declares opposition to death penalty. In MSNBC. Retrieved June 9, 2008 from http://www.msnbc.msn.com/id/24163745/
Randall, K. (2002). US Supreme Court Justice Scalia on capital punishment: “Death is no big deal.” In World Socialist Web Site. Retrieved June 10, 2008 from http://www.wsws.org/articles/2002/jul2002/scal-j05.shtml
United States Supreme Court (2008a). Kennedy v. Louisiana: Oral Argument.
United States Supreme Court (2008b). Baze v. Reese. 07-5439 217 S. W. 3d 207
United States Supreme Court (2005). Roper v. Simmons. 543 U.S. 551.
United States Supreme Court (2002). Atkins v. Virginia. 536 U.S. 304
United States Supreme Court (1977). Coker v. Simmons. 433 US 584.