On June 25, the U.S. Supreme Court struck down as uncon­sti­tu­tion­al a 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 against an indi­vid­ual involved no mur­der or intent to mur­der, were not in keep­ing with 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. Today, no one is on death row for any offense not involv­ing mur­der.

The Court not­ed that the defen­dant, Patrick Kennedy, had been sen­tenced to death under a law that was not embraced by 44 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 lenthy appeals or re-tri­als, and that equat­ing rape to mur­der sends the wrong mes­sage to child vic­tims.
(Kennedy v. Lousiana, 07 – 343 U.S. (2008)). See Supreme Court and DPIC’s Kennedy v. Lousiana page.

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