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May 22, 2007

Louisiana Supreme Court upholds death sentence for child rape

In a case that seems likely to get US Supreme Court attention, the Louisiana Supreme Court today upheld the death sentence of child rapist Patrick Kennedy in Louisiana v. Kennedy, No. 05-KA-1981 (La. May 22, 2007) (available here).  Here is a snippet of the heart of the analysis of the majority opinion in Kennedy:

Looming over this case is the potential for the defendant to be the first person executed for committing an aggravated rape in which the victim survived since La. R.S. 14:42 was amended in 1995 to allow capital punishment for the rape of a person under the age of twelve.  The defendant contends that Louisiana stands in a minority of jurisdictions in which legislatures have authorized capital punishment for the rape of a child not resulting in homicide and predicts that La. R.S. 14:42 is unlikely to survive the scrutiny of the United States Supreme Court, whose decisions the defendant interprets as making it clear that the loss of life is the essential component which renders capital punishment a proportionate penalty under the Eighth Amendment....

While we cannot purport to exercise the Supreme Court's independent judgment on any matter, it can be said for child rapists as a class of offenders that, unlike the young or mentally retarded, they share no common characteristic tending to mitigate the moral culpability of their crimes. Contrary to the mentally retarded and juvenile offenders, execution of child rapists will serve the goals of deterrence and retribution just as well as execution of first-degree murderers would.  Our state legislature, and this Court, have determined this category of aggravated rapist to be among those deserving of the death penalty, and, short of a first-degree murderer, we can think of no other non-homicide crime more deserving....  We affirm [our prior] reasoning [in Wilson] today and hold that the death penalty for the rape of a child under twelve is not disproportionate.

The AP has this early report on the Kennedy decision.

Some related posts:

May 22, 2007 at 05:12 PM | Permalink


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The Louisiana Supreme Court issued its decision in Louisiana v. Kennedy upholding the death sentence for Patrick Kennedy who was convicted of aggravated rape of a child. Kennedy is the only person in the United States on death row for [Read More]

Tracked on May 22, 2007 9:31:01 PM


If cert. is granted, this case will get 4 votes to toss the sentence. It will be laughable indeed to see the jujitsu employed to justify such a vote.

Posted by: federalist | May 22, 2007 5:31:57 PM

What is far more laughable is the jujitsu that was employed to get the Supreme Court's death penalty jurisprudence to its current state of affairs in the first place.

Posted by: Marc Shepherd | May 22, 2007 6:11:16 PM

Kennedy will be the fifth vote confirming that Coker still prohibits a death sentence for a crime that doesn't result in death of a victim. No jujitsu required.

That or we'll see a fractured plurality opinion that holds nothing.

Posted by: rothmatisseko | May 22, 2007 7:40:22 PM

Rothmatisseko is, as usual, correct. This is at least a 5-4, if not more, reversal. I don't think it helps that the LA Supreme all but taunt the Court to reverse. Coker is, after all, rather black letter law.

Curiously bit of errata, Justice Ginsburg wrote the ACLU's amicus brief in Coker. Small world.

Posted by: karl | May 22, 2007 11:17:31 PM

Karl, Coker is not controlling here. The black letter holding of Coker does not address rape of a child.

Perhaps the Supreme Court can revert to its "kids are mini-adults jurisprudence" that we saw in the abortion cases, which would make the child victim less of a victim. Who knows? Of course, the Supreme Court will have to explain why "kids are just kids" when they murder, why "kids are little adults" when they want to abort a pregnancy and why they're on the same level of adults when the victim of a rape.

As I said earlier, the jujitsu will be interesting, to say the least. At the end of the day, of course, if a reversal gets five votes, the five will simply say that their sensibilities are what counts. I, for one, have to wonder about the sensibilities of people like Justice Ginsburg who, in scholarly papers, argued for coed prisons (which reminds one of Orwell, only an intellectual could make such a damned fool argument) and, of course, that's not the only moronic argument Ginsburg has advanced (see, e.g., her views on the age of consent), or people like Justice Breyer, who have seriously argued for a time limit on the ability to execute.

By the way, I think these laws are ill-advised. They are, however, incontrovertably constitutional.

Posted by: federalist | May 22, 2007 11:49:38 PM

federalist, you might want to actually read in context what Ginsburg wrote about the age of consent as opposed to what the right wing blogs claim she wrote.

Posted by: Elson | May 23, 2007 12:16:36 AM

I'm with Rothmatisseko. I think Coker is both wrongly decided and distinguishable, but I don't think Justice Kennedy will let this guy die.

Compared to what the Supreme Court's done in the past, the opinion will hardly be jujitsu. There's a narrow reading of Coker and a broad reading. Both are plausible. Justice Kennedy will pick the broad reading. Hopefully he'll resist the urge to write bad poetry into the opinion, but that's the only thing I have serious doubts about.

Posted by: | May 23, 2007 12:26:38 AM

The jujitsu will be getting around the "direction of the change" and the uniqueness of the statute in Coker.

In any event, I am happy to be wrong about Ginsburg--perhaps the changing of the age from 16 to 12 was a mangled attempt to deal with the Romeo and Juliet problem (although given her goofy ideas, I am not sure that she deserves the benefit of the doubt). But she did advocate a constitutional right to prostitution. So I'll simply substitute that for the lowering the age of consent. The criticism stands. And I notice, Elson, that you don't dispute the utter stupidity of coed prisons. Nor, do I suspect, that you'll seriously dispute that the idea that there is a Constitutional right to engage in prostitution is simply preposterous.

Posted by: federalist | May 23, 2007 12:53:22 AM

Just out of curiosity--what ever happened to Coker, the murderer-rapist spared the death penalty?

Posted by: federalist | May 23, 2007 2:26:17 AM

Go to:
www.dcor.state.ga.us/GDC/OffenderQuery/jsp/OffQryForm.jsp and paste 0000379279 in the GDC IC Number box (or search for Ehrlech Coker, white, male). He's in prison near Atlanta.

Posted by: Jay | May 23, 2007 3:10:42 AM

Why, it looks like the guy was let off absolutely free! Wow! Those guys that are "spared" the death penalty sure catch a break. I am sure that every minute of his life is fill with joy.

Posted by: S.cotus | May 23, 2007 6:51:19 AM


No more than seven states have the death penalty for child rape, or put another way, well over 40 jurisdictions do not. No one has been executed for child rape in at least 40 years. International consensus -- save for those countries where radical fundamentalism the rage -- is strongly opposed to the death penalty. Again, where is the jujitsu.

12:26's comments are directly on point & it is possible that at least one member of the R/S/T/A block will join him.

Posted by: karl | May 23, 2007 7:44:29 AM

Karl, you are correct that, given existing precedents, the death penalty will be reversed in this case.

But there are many people, including several of the Justices, who believe that Supreme Court cases shouldn't be decided by polling how many states and foreign countries have a particular law, and then declaring that the Constitution has evolved "by consensus."

Let me stress that the legal and policy questions are different. There are rational policy reasons for not having a death penalty for child rape, which is probably why 43 out of 50 states don't have it. But that doesn't mean the 7 that do have violated the Constitution.

Posted by: Marc Shepherd | May 23, 2007 9:22:50 AM

S.cotus jokes about people who got out of their death sentences. Of course, there are people in the ground because of convicted murderers getting off death row. It is not a laughing matter.

Posted by: federalist | May 23, 2007 9:54:46 AM

Marc, in this case, the "direction of the change" is decidedly in favor of making this penalty constitutional, a factor which was not in Atkins and Simmons.

Posted by: federalist | May 23, 2007 10:08:18 AM

Federalist, I do agree that the "direction of change" argument favors the state in this case.

But I also don't think that's how cases should be decided, regardless of which "direction" the winds happen to be blowing at any given moment.

Posted by: Marc Shepherd | May 23, 2007 10:24:54 AM

To me, this is funny. You people are so concerned about ritualistically executing people, you don’t really care about anything else, yet alone what actually happens to them. Likewise, Professor Berman points out, others are so concerned about stopping the state-sponsored killings, they don’t really care about greater issues in criminal justice. So, yes, it is funny.

The “Direction of Change” is a political one, but it really doesn’t have much traction in courts. In fact, last time I looked at it, it was a pretty solid loser when people tried to get injunctions, arguing that the “direction of change” provided for some likelihood of success.

Posted by: S.cotus | May 23, 2007 10:58:47 AM

The "Direction of Change" argument has been successful in the Supreme Court, for instance in finding that it was unconstitutional to execute people who were juveniles at the time of their crimes.

To be clear, I do not believe juvenile offenders should be executed. I'm just not convinced that the "Direction of Change" argument is legally the correct way to answer the question.

Posted by: Marc Shepherd | May 23, 2007 11:25:17 AM

Marc, I think maybe there are two different arguments. The 8th amendment, by its own terms, deals with the issue of “unusual” (and therefore “usual” punishments), and therefore, courts (including the Supreme Court) have taken into account the country’s ongoing experience with punishments.

On the other hand, a “direction of change” argument that deals with the interaction of two constitutional provisions, or sort of a “slippery slope” argument hasn’t enjoined much success.

Posted by: S.cotus | May 23, 2007 12:51:10 PM

In striking down the death penalty, I am fairly certain Justice Stevens did refer to the "direction of the change," or words to that effect.

I am well aware of the idea that the Supreme Court has "taken into account the country's ongoing experience with punishments" when it decides what is "unusual." But there continues to be considerable debate over what that means. After all, Furman was a 5-4 decision. Thirty-five years later, there is still no widely agreed approach to answering that question.

Posted by: Marc Shepherd | May 23, 2007 1:28:33 PM

By the way, here is the exact quote from Atkins, with Justice Stevens writing for a 6-3 majority:

"It is not so much the number of these States that is significant, but the consistency of the direction of change." (Emphasis added.)

Posted by: Marc Shepherd | May 23, 2007 1:30:18 PM

"Direction of change" is a last-ditch argument the living constitutionalists on the Supreme Court use when they want to do something lawless. A direction can be manufactured, for example by looking to a suitable level of generality (here, as in Roper v. Simmons, the court might look to the "trend" of states cutting back the death penalty) or by looking to foreign countries. Or it can be subordinated to some other lawless principle. The living constitutionalists don't like this particular "direction" (harsher crimes for sex offenders), so they won't constitutionalize it.

And so long as the court has Coker, there's no need for these types of arguments.

Posted by: anonymous | May 23, 2007 1:50:21 PM

You would be correct, anonymous, if the standards by which the constitutionality of death sentences were evaluated under the 8th Amendment were not "evolving." What is "cruel and unusual" - a term left purposely ambiguous and note that pesky word "unusual" - today may not be considered cruel or unusual (indeed because it may have become *usual*!) 20 years from today.

Posted by: Brett T. | May 23, 2007 2:33:09 PM

As I read Roper v. Simmons, to the extent that it made any pretense of tying its approach to the text of the Eighth Amendment, it did so with reference to the "cruel" language, not the "unusual" part. To say that a punishment is "disproportionate" is to say that it's cruel.

From Roper:------
"As in Atkins, the objective indicia of consensus in this case–the rejection of the juvenile death penalty in the majority of States; the infrequency of its use even where it remains on the books; and the consistency in the trend toward abolition of the practice–provide sufficient evidence that today our society views juveniles, in the words Atkins used respecting the mentally retarded, as “categorically less culpable than the average criminal.” 536 U.S., at 316."

* * *

"Our determination that the death penalty is disproportionate punishment for offenders under 18 finds confirmation in the stark reality that the United States is the only country in the world that continues to give official sanction to the juvenile death penalty. "

Posted by: anonymous | May 23, 2007 3:07:35 PM

Sullivan is the only person sentenced to death for rape. Even if six other states have similar laws, that's about as unusual as it gets.

Brett, if "[w]hat is 'cruel and unusual' . . . today . . . may [] have become *usual*! . . . 20 years from today," then over some period of time the courts would have been allowing punishments that are unusual.

Posted by: rothmatisseko | May 23, 2007 4:22:01 PM

One important point, the feds provide for death sentences for crime not involving death. That means, ipso facto, that the society as a whole, through its elected representatives, has endorsed death for non-lethal crimes. The feds did not endorse death sentences for mentally retarded defendants nor did it endorse death sentences for juvenile killers. This is an important distinction.

Posted by: federalist | May 24, 2007 10:35:31 AM

federalist, those are dead letters and their non-enforcement shows the standard of decency to preclude death for a crime that does not cause death.

Kennedy's the only one. (Not Sullivan, as my previous post incorrectly named the petitioner here.)

Posted by: rothmatisseko | May 24, 2007 10:55:58 AM

While I am sure that Federalist has never really put much thought into this, I sort of think that the idea that the Congress somehow embodies "society as a whole" whereas the sum of state legislatures do not.

There are all sorts of constitutional implications for this, and it would make a neat law review. Completely anti-federalist in nature, but hey, federalists never were consistent.

Posted by: S.cotus | May 24, 2007 10:59:24 AM

it is a distinction, and will have to be dealt with

Posted by: federalist | May 24, 2007 12:18:49 PM

"[Kennedy] is the only person sentenced to death for rape. Even if six other states have similar laws, that's about as unusual as it gets."

Right; which nicely explicates my main point here: the Roper/Simmons enunciation of the evolving standards of decency framework has, as a main compenent, a search for national indicia of consensus (including an examination of the extent and consistency of the direction of change).

And to 3:07 - I don't know that the Court has ever really parsed the "cruel and unusual" language to separate meanings for each word (It very well may have, but if It has, I haven't seen it), so my focus on "unusual" was a bit disingenuous - I did it to add color to my main point, referenced again in the first paragraph of this post.

Posted by: Brett T. | May 25, 2007 9:31:59 PM

The other real issue here is whether the Supreme Court has the right (as opposed to the power) to nip expansion of the death penalty in the bud. Let's say that more and more legislatures determine that executions actually deter and prevent murders and therefore move to expand the death penalty to include attempted murder. Could the Supreme Court stop this trend at one? Two? There is nothing logical about a one-way ratchet.

What the Court could do with Kennedy is deny cert. and take a wait and see approach. If other states follow Texas and Louisiana's example, then maybe they should allow these executions.

The Supreme Court really ought to overturn some of its silly rules about death. The no mandatory death penalty needs to go. As does the mental retardation usurpation and the juvie one as well. This whole idea of the "worst of the worst" is a failed experiment. Let's go back to the way things were and use all those resources expended on the penalty phase where they belong, guilt/innocence.

People ought to realize--the execution of a killer really, when you look at all the other things this nation has to deal with, is not that big a deal. When you murder someone, the default rule ought to be that you pay for your crime with your life. Why this is such a "barbaric" idea is a complete mystery to me. It is far far less so than misguided policies that foisted violent criminals on society after woefully short stints in the pokey. In my way of looking at the world (putting aside innocence issues), the German government's release of the terrorist who murdered Robert Dean Stethem after only 19 years is far more barbaric than executing 100 murderers. I defy anyone here to dispute that.

Posted by: federalist | May 26, 2007 7:25:52 PM

"When you murder someone, the default rule ought to be that you pay for your crime with your life. Why this is such a 'barbaric' idea is a complete mystery to me."

I don't think it's a mystery to you. You've said many times that respecting the lives of people who have killed only amounts to whining and crying for sub-human creatures, or something like that. A barbaric, never-ending cycle of violence, bloodletting, and revenge is your preferred state of affairs. But the opposing view is not mysterious.

Posted by: rothmatisseko | May 31, 2007 3:11:31 PM

Rothmat, it must be so nice to be as enlightened as you are. But remember, locking people away for the rest of their lives is violence as well. And there is a lot of difference between the response of society demanding that a killer forfeit his life and a murder itself.

But whatever. I don't see how one can possibly argue that an "eye for an eye" enshrined in law is somehow "barbaric".

But Rothmat, for as bright as you think yourself, I notice that you dare not take up my challenge. Figures--you guys are always telling us how barbaric we are.

Posted by: federalist | May 31, 2007 10:09:40 PM

Great post even though I was a little confused at first and thought you are talking about jewels. Anyhow great site and good info to know! More conversation materials for me!

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