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U.S. Supreme Court: Kennedy v. Louisiana, No. 07 – 343

Argued: April 16, 2008

Decided: June 25, 2008

Introduction

The United States Supreme Court agreed on January 4, 2008 to review the case of a man in Louisiana who was sen­tenced to death for the rape of a child who did not die. Of the approx­i­mate­ly 3,350 peo­ple on death row in the U.S., only two pris­on­ers had received the death penal­ty for this type of offense. Patrick Kennedy was con­vict­ed and sen­tenced to death in 2004 for the rape of his 8‑year-old step­daugh­ter. That judg­ment was affirmed by the Louisiana Supreme Court in Louisiana v. Kennedy, No. 05-KA-1981 on May 22, 2007.

Kennedy chal­lenged his sen­tence as a vio­la­tion of the Eighth Amendment based on the rar­i­ty of a death sen­tence for this crime. (Richard Davis was also on Louisiana’s death row for a sim­i­lar crime.) No one in the U.S. has been exe­cut­ed for a crime oth­er than mur­der since 1964. The Court last con­sid­ered a relat­ed issue in 1977 when it pro­hib­it­ed cap­i­tal pun­ish­ment for the rape of an adult in Coker v. Georgia. While that case did not specif­i­cal­ly address the rape of chil­dren under the age of 12, the deci­sion was viewed by some as lim­it­ing the death penal­ty to the crime of murder.

QUESTIONS PRESENTED
1. 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.
2. 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.

Among the briefs filed with the U.S. Supreme Court request­ing that Kennedy’s sen­tence be reviewed and over­turned was the brief filed by a group of social-work­er orga­ni­za­tions: The National Association of Social Workers, the Louisiana Chapter of National Association of Social Workers, the Louisiana Foundation Against Sexual Assault, the Texas Association Against Sexual Assault, and the National Alliance to End Sexual Violence. These orga­ni­za­tions argued that, ​“The Court Should Intervene Now To Eliminate The Death Penalty For Child Rape, A Penalty That Harms Abused Children Rather Than Helps Them,” for three main reasons:

  • “Permitting the death penal­ty for child rape will wors­en the prob­lem of under-report­ing sexual abuse.”
  • “Allowing Louisiana to exe­cute child rapists will increase the incen­tives on child moles­ters to kill their victims.”
  • “The Louisiana statute would sub­ject child vic­tims to an increased num­ber of tri­als and appeals, forc­ing them to relive painful events repeat­ed­ly and dis­rupt­ing the healing process.”

Five oth­er states have laws allow­ing the death penal­ty for a sex­u­al assault against a minor, though no one has been sen­tenced to death in those states (Montana, South Carolina, Oklahoma, Georgia, and Texas).
(See Linda Greenhouse, ​“Justices to Decide if Rape of a Child Merits Death,” The New York Times, January 5, 2008).

Decision

The U.S. Supreme Court struck down as uncon­sti­tu­tion­al the Louisiana statute that allowed the death penal­ty for the rape of a child where the vic­tim did not die. In Kennedy v. Louisiana, the Court held that all such laws, where the crime was against an indi­vid­ual and no mur­der was com­mit­ted, were con­trary to the nation­al con­sen­sus restrict­ing the death penal­ty to the worst offens­es. As a result, the only two peo­ple sen­tenced to death for this crime in the mod­ern cap­i­tal pun­ish­ment era no longer face exe­cu­tion. Both were sen­tenced under the Louisiana statute that was found uncon­sti­tu­tion­al. No one is now on death row for any offense except murder.

The Court not­ed that the defen­dant, Patrick Kennedy, had been sen­tenced to death under a law that was embraced by only 6 out of the 50 states. Justice Anthony Kennedy, writ­ing for the 5 – 4 major­i­ty, stat­ed, ​“Based both on con­sen­sus and our own inde­pen­dent judg­ment, our hold­ing is 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.” The Court point­ed to the dan­ger in laws such as Louisiana’s, which allowed the death penal­ty where no mur­der was com­mit­ted: ​“When the law pun­ish­es by death, it risks its own sud­den descent into bru­tal­i­ty, trans­gress­ing the con­sti­tu­tion­al com­mit­ment to decen­cy and restraint.”

Victims’ groups and child advo­cates had con­clud­ed that the death penal­ty for child rape could actu­al­ly harm chil­dren, rather than pro­tect them. Some of the rea­sons they cit­ed includ­ed a pos­si­ble decrease in report­ing, re-vic­tim­iza­tion through the lengthy appeals or re-tri­als, and that equat­ing rape to mur­der sends the wrong mes­sage to child vic­tims.
Read the deci­sion: Kennedy v. Louisiana, 07 – 343 U.S. (2008)) (See mod­i­fied opin­ion fol­low­ing note about rehearing).

COURT DENIES LOUISIANA’S REQUEST FOR REHEARING

On October 1, 2008 the U.S. Supreme Court denied Louisiana’s request for a rehear­ing of the Court’s rul­ing strik­ing down the death penal­ty for non-homi­ci­dal offens­es against indi­vid­u­als. Louisiana con­tend­ed that a recent adjust­ment to mil­i­tary law that con­tin­ued to allow the death penal­ty for child rape should have been tak­en into account by the Court, result­ing in a dif­fer­ent opin­ion. The Court slight­ly mod­i­fied both the major­i­ty and dis­sent­ing opin­ions to include ref­er­ence to the mil­i­tary code. The Court issued a state­ment, leav­ing intact its deci­sion not only revers­ing Patrick Kennedy’s death sen­tence for child rape, but also hold­ing that the death penal­ty would be dis­pro­por­tion­ate for any crime against an indi­vid­ual in which the vic­tim is not killed. The state­ment said, in part:

[A]uthorization of the death penal­ty in the mil­i­tary sphere does not indi­cate that the penal­ty is con­sti­tu­tion­al in the civil­ian con­text. The mil­i­tary death penal­ty for rape was in effect before the deci­sions in Furman v. Georgia, 408 U. S. 238 (1972) (per curi­am), and Coker v. Georgia, 433 U. S. 584 (1977); and when the Court sur­veyed state and fed­er­al law in Coker, it made no men­tion of the military penalty.

…

That the Manual for Courts-Martial retains the death penal­ty for rape of a child or an adult when com­mit­ted by a mem­ber of the mil­i­tary does not draw into ques­tion our con­clu­sions that there is a con­sen­sus against the death penal­ty for the crime in the civil­ian con­text and that the penal­ty here is unconstitutional.

(Kennedy v. Lousiana, 07 – 343 U.S. (mod­i­fied opin. Oct. 1, 2008); Order mod­i­fy­ing the opin­ion and the dis­sent; and JJ.Kennedy, Souter, Stevens, Ginsburg & Breyer opin­ion respect­ing denial of rehear­ing; and J. Scalia & C.J. Roberts opin­ion respect­ing denial of rehear­ing, Oct. 1, 2008).

Argument and Filings In Kennedy v. Louisiana

Argument: April 16, 2008

Transcript of the US Supreme Court Argument

I. US Supreme Court

Main Briefs

Amicus Filings in Support of the Petitioner

Amicus Filings in Support of the Respondent

Petition for Rehearing

II. Petition for Certiorari

Defense Documents:

State Documents:

Amicus Filings in Support of the Petitioner

III. Direct Appeal

Defense Documents:

State Documents: Appeal


States That Allowed the Death Penalty for the Sexual Assault of a Child
Forty-four states barred the death penal­ty for child rape pri­or to the Court’s deci­sion. Although the fol­low­ing six states allowed the death penal­ty for this crime, Louisiana was the only state that sen­tenced an offend­er to death and was the only state that impos­es the death penal­ty for first-time offend­ers con­vict­ed of child rape.

STATESOFFENSESENACTEDDEATH SENTENCES/​EXECUTIONSNOTES

Texas

Second con­vic­tion for rape of a child under 14; first offense could have occurred pri­or to law’s pas­sage; Bill HB 8

2007

0/​0

Passed by leg­is­la­ture; signed by gov­er­nor on July 16, 2007

Oklahoma

Rape or forcible sodomy of a vic­tim under 14 where the defen­dant had a pri­or con­vic­tion of sex­u­al abuse of a per­son under 14; 10 Okl. St. Ann. § 7115(I)

2006

0/​0

South Carolina

Repeat offend­ers of crim­i­nal sex­u­al con­duct with a minor under 11;
S.C. Code Ann. § 16 – 3‑655(C)(I)

2006

0/​0

Montana

Second con­vic­tion for sex­u­al inter­course with­out con­sent accom­pa­nied by seri­ous bodily injury;
Mont. Code Ann. sec. 45 – 5‑503

1997

0/​0

Louisiana

Aggravated rape of a child under 13;
La. Rev. Stat. Ann. sec. 14:42(D)(2)

1995

2/​0

Statute upheld in State v. Kennedy on May 22, 2007; sim­i­lar statute upheld in State v. Wilson, 685 So.2d 1063, 1073 (La. 1996) but defen­dant did not receive a death sen­tence. Victim under age 13, rather than 12, was added more recent­ly (Acts 2003, 2006).

Georgia

Carnal knowl­edge of a female who is less than 10 presumes force;
Ga. Code Ann. sec. 16 – 6‑1

1999

0/​0

In 2006, Georgia’s leg­is­la­ture revoked its gen­er­al cap­i­tal rape statute, but it is unclear whether the rape of a minor could be pur­sued as a capital crime.

U.S. Military

10 U. S. C. §856; Manual for Courts-Martial, United States, Part II, Ch. X, Rule 1004(c)(9) (2008); id., Part IV, ¶45.f(1).

Modified 2006

0/​0

Although the impact of Congress’ mod­i­fi­ca­tion of the mil­i­tary law is unclear, the U.S. Supreme Court con­clud­ed that mil­i­tary law does not impact the eval­u­a­tion of the nation­al con­sen­sus regard­ing the death penal­ty for child rape under civilian law.

LaFASA Statement on Kennedy v. Louisiana Decision

June 25, 2008

The Louisiana Foundation Against Sexual Assault (LaFASA) sup­ports the Supreme Court’s deci­sion, released this morn­ing to over­turn the death penal­ty for child sex­u­al assault cas­es. Victim advo­cates have long been con­cerned that the death penal­ty for child sex­u­al assault cas­es could back­fire and result in few­er con­vic­tions of sex offend­ers. The issue of child sex­u­al abuse is com­plex. Most child sex­u­al abuse vic­tims are abused by a fam­i­ly mem­ber or close fam­i­ly friend. The real­i­ty is that child vic­tims and their fam­i­lies don’t want to be respon­si­ble for send­ing a grand­par­ent, cousin or long time fam­i­ly friend to death row.

Today we join sex­u­al assault coali­tions across the coun­try in applaud­ing the Supreme Court’s step toward ensur­ing that pros­e­cu­tions of child sex­u­al assault across our nation remain vic­tim-cen­tered and child-friend­ly in their approach. Our work, how­ev­er, is not yet com­plete. We remain ded­i­cat­ed to find­ing effec­tive ways to increase report­ing rates, sup­port vic­tims, and keep Louisiana com­mu­ni­ties and children safe.

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