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March 3, 2007

Direct test of constitutionality of the death penalty for child rape

As detailed in this AP report, this past week the Louisiana Supreme Court heard oral argument on the constitutionality of the only death sentence that has to date actually been imposed for child rape.  Here are some details:

The only inmate on any U.S. death row for rape contends that his conviction should be thrown out because the Louisiana law allowing the penalty for raping a child is unconstitutional.  Chief Justice Pascal Calogero took arguments and briefs under advisement after a hearing Wednesday, and did not say when the high court will rule.

The 42-year-old Harvey man was convicted in 2003 of aggravated rape of his stepdaughter; his name has been withheld from news reports to protect the girl. She was 8 years old when she told Jefferson Parish sheriff's deputies in March 1998 that she had been raped by one of two men who had dragged her from her garage to a vacant house.  Eighteen months later, she told her mother that it was her stepfather who had raped her. 

The man is the only person convicted under the 1995 law, which allows the death penalty for aggravated rape of someone less than 12 years old. He also is the only person sentenced to death for a crime other than murder since the U.S. Supreme Court ruled in 1977 that murder was the only crime for which the death penalty was constitutional, Nick Trenticosta, a New Orleans attorney who has handled numerous death row appeals, said in 2003. Only three other states -- Montana, Oklahoma and South Carolina -- have passed laws allowing the death penalty for child rape, Martin Stern of the New Orleans law firm Adams & Reese, now representing the man, told the Louisiana Supreme court at a hearing Wednesday. The other states require "aggravating" circumstances, such as a prior rape conviction, for the death penalty to be invoked, but Louisiana does not, he said.

Jefferson Parish Assistant District Attorney Juliet Clark argued that the child's age is an aggravating factor.  The appeal contends both that the law is unconstitutional and that the conviction should be tossed because during the trial and penalty phases, District Judge Ross LaDart and Jefferson Parish prosecutors committed numerous "harmful" errors.

As some may know, Louisiana over a decade ago upheld the facial constitutionality of the death penalty for child rapists in State v. Wilson, 685 So. 2d 1063 (1996).  The Supreme Court denied cert, 520 U.S. 1259 (1997), but did so essentially on procedural grounds with Justices Stevens, Breyer and Ginsburg specifically noting that the denial did "not in any way constitute a ruling on the merits."

March 3, 2007 at 12:05 PM | Permalink

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» How Far Will the Death Penalty Reach? from ACSBlog: The Blog of the American Constitution Society
by Martin Magnusson, Editor-at-LargeTexas uses the death penalty more often than any other state in the union; since 1976, it has executed 389 people. At the same time, though, alarming questions have been raised about the accuracy of its criminal... [Read More]

Tracked on Apr 4, 2007 10:35:49 AM

Comments

I think this man should get the death penalty he deserves it for doing what he did to that little girl. Just like a murderer would get the death penalty, so should he, he may not have physically murdered her, but he murdered her soul. That little girl lost something that she can NEVER get back. He took it away from her and he should pay with his life.

Posted by: Felicia | Mar 3, 2007 3:57:45 PM

Something is lost that a child can NEVER get back when either parent is killed or maimed by a drunk driver, or killed or maimed by negligent conditions at work, or when a father is killed by the state for a false conviction, and a change of story 18 months later? More alarming is putting the burden and responsibility for a death on an 8-year-old. Better for deterrence, convictions, and justice to teach children about DNA. Children as young as kindergarten, probably younger, could understand a well done cartoon (no Reefer Madness stuff). That would empower them. They would know what to do and would not have to wonder if anyone would believe them. Children could have their own 911 emergency number with dispatchers well trained on these issues. This alone would probably accomplish more than all the laws we are passing and it wouldn't have to be alarmist and paranoia inspiring. Just the facts, Ma'am. Entertaining and empowering.

From death row to the talk circuit

Wednesday, February 14, 2007

By LAWRENCE AARON

Life for Kirk Bloods-worth almost ended on death row. In 1992 he was the first man who served time on death row to be freed based on DNA evidence -- and dumb luck. He said a judge who'd heard his case stored key evidence in his chambers instead of releasing it to be stored and possibly lost or destroyed.

The invention of DNA testing occurred just in time to exonerate Bloodsworth, although he'd been convicted for the rape and murder of 9-year-old-Dawn Hamilton. The DNA ultimately led to the real killer's conviction.

Posted by: George | Mar 3, 2007 7:50:17 PM

It should be constitutional. Coker was only an adult female. And if we use the direction of the change test . . . . it seems that the direction is in favor of the death penalty.

Posted by: federalist | Mar 4, 2007 3:37:05 PM

A Florida statute declaring rape of a child under 12 a capital offense is still on the books (section 794.011(2)(a)). I don't know whether anybody considers it enforceable. There would be a separate sentencing phase with aggravating and mitigating factors considered. Being in a position of authority over the victim -- as with the defendant in the Louisiana case -- is a statutory aggravating factor.

The Louisiana DA deserves to lose the case for misuse of legal language, the phrase "murder of a child's innocence."

If I understand Supreme Court precedent, if rape can ever be a death-eligible crime the state could declare it so and make the victim's age an aggravating factor to be considered in the sentencing phase, but could not make age an element of the crime and permit the jury to convict of capital rape all at once as apparently happened here. But I think the high court is just making up rules on a whim the past 40 years so there's little point in making predictions.

Posted by: John Carr | Mar 4, 2007 8:56:37 PM

I suspect that the Lousiana high court will make every effort to find a non-constitutional ground for resolving the case to avoid the issue.

Posted by: ohwilleke | Mar 5, 2007 3:16:43 PM

What have animals done to us? Nohting unless they're self defending themselves and thats why they hurt you! If someone killed someone or did something so horrible to someone then you would say they should be put on death row right? Well if they want to live then they should have a choice to be tested or die coz everyone has free speech and they can make a choice out of the two.

Posted by: | May 7, 2007 8:47:29 AM

What have animals done to us? Nohting unless they're self defending themselves and thats why they hurt you! If someone killed someone or did something so horrible to someone then you would say they should be put on death row right? Well if they want to live then they should have a choice to be tested or die coz everyone has free speech and they can make a choice out of the two.

Posted by: | May 7, 2007 8:47:31 AM

Jim Crow laws and (b) to suggest that such applicable criminal activities are a proxy for race--as there is no inherent association with criminal behavior and race.

Posted by: classic short uggs | Oct 18, 2010 7:35:36 AM

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