The U.S. Supreme Court agreed on Jan. 4 to review the case of a man in Louisiana who was sen­tenced to death for a crime in which the vic­tim, a child, did not die. Of the approx­i­mate­ly 3,350 peo­ple on death row in the U.S., only two inmates received the death penal­ty for a non-homi­cide crime. Patrick Kennedy was con­vict­ed and sen­tenced to death in 2004 for the rape of his 8‑year-old step­daugh­ter. He is chal­leng­ing his sen­tence as a vio­la­tion of the Eighth Amendment based on the rar­i­ty of a death sen­tence for this crime. Richard Davis is 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 case in 1977 when it pro­hib­it­ed cap­i­tal pun­ish­ment for the rape of an adult in Coker v. Georgia. While the case did not specif­i­cal­ly address the rape of chil­dren under the age of 12, ​“the deci­sion has been wide­ly under­stood as lim­it­ing the death penal­ty to the crime of mur­der,” accord­ing to The New York Times.

Four 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, and Texas). Those states lim­it the pun­ish­ment to defen­dants who have been pre­vi­ous­ly con­vict­ed of sex­u­al assault against a minor, unlike Louisiana, which was the first to amend its death penal­ty statute.

Both the National Association of Criminal Defense Lawyers and a group of orga­ni­za­tions and indi­vid­u­als that work with sex­u­al assault vic­tims have filed briefs on Kennedy’s behalf, with the lat­ter group con­cerned that accep­tance of the pun­ish­ment will fur­ther dis­suade sex­u­al assault vic­tims from report­ing the crime.

The case, Kennedy v. Louisiana, No. 07 – 343, will most like­ly be argued in April. Legal briefs in the case can be found at the Capital Appeals Project.
(“Justices to Decide if Rape of a Child Merits Death,” by Linda Greenhouse, The New York Times, January 5, 2008). See also Death Penalty for Offenses Other Than Murder and U.S. Supreme Court.

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