« Should Crawford confrontation apply at capital sentencing? | Main | Not quite sentencing the dead »

September 14, 2007

A strong argument for commuting Patrick Kennedy's death sentence

I have now had a chance to read closely the effective petition for writ of certiorari in Kennedy v. Louisiana (available here), which calls upon the Supreme Court to review and reverse the Louisiana Supreme Court's decision to uphold the death sentence given to Patrick Kennedy for the crime of child rape.  Because the petition is so strong and effective, I have decided that the case ought to get "resolved" before the Supreme Court even has a chance to consider it.  Specifically, I now think the Governor of Louisiana ought to — perhaps even ought to feel obligated to — commute Patrick Kennedy's death sentence.

As I have explained in this post, I believe states could reasonably garner symbolic and practical benefits from making certain repeat child rape a capital offense.  Consequently, as I read the Kennedy cert petition, I am troubled greatly by arguments suggesting that it is always unconstitutional to make any extreme non-homicide offenses subject to the death penalty.  And yet, because the facts surrounding the Kennedy case do not seem extremely aggravating, I am troubled greatly by the fact that Patrick Kennedy is the only person sentenced to death for a non-homicide offense.

Of particular note, Patrick Kennedy has no significant criminal history, he may be mentally retarded, he has "insisted on his innocence," and there does not seem to be any distinctive aggravating factors surrounding his crime.  See petition at pp. 4-8.  In other words, Patrick Kennedy does not fit the image of a monstrous predator sex offender perhaps deserving of a death sentence.  Indeed, anyone considering the distinctive facts of the Kennedy case could readily conclude that it is "cruel and unusual" for Patrick Kennedy to be the only rapist sentenced to death in the modern capital era.  Consequently, because the Governor of Louisiana has an obligation to uphold the Constitution, I think the Governor ought to — perhaps even ought to feel obligated to — commute Patrick Kennedy's constitutionally-suspect death sentence.

The irony of Patrick Kennedy being the potential test defendant for the capital child rape issue is evident when one considers the crimes of Ehrlich Anthony Coker, the defendant at the center of the Supreme Court's 1977 decision declaring the death an unconstitutional punishment for the crime of adult rape.  As I have suggested elsewhere, Coker would seem to be a poster boy for the death penalty given this description of his life and crimes from Chief Justice Burger's opinion in Coker:

On December 5, 1971, the petitioner, Ehrlich Anthony Coker, raped and then stabbed to death a young woman.  Less than eight months later Coker kidnaped and raped a second young woman. After twice raping this 16-year-old victim, he stripped her, severely beat her with a club, and dragged her into a wooded area where he left her for dead.  He was apprehended and pleaded guilty to offenses stemming from these incidents. He was sentenced by three separate courts to three life terms, two 20-year terms, and one 8-year term of imprisonment.  Each judgment specified that the sentences it imposed were to run consecutively rather than concurrently.  Approximately 1-1/2 years later, on September 2, 1974, petitioner escaped from the state prison where he was serving these sentences.  He promptly raped another 16-year-old woman in the presence of her husband, abducted her from her home, and threatened her with death and serious bodily harm.

Since the state of Georgia was constitutionally barred from executing Ehrlich Anthony Coker, I have a very hard time seeing how Louisiana's executive officials can feel constitutionally certain about moving forward with the execution of Patrick Kennedy.

UPDATE:  A helpful reader sensibly suggested that I highlight that the Kennedy petition stresses the distinctive nature of "person-on-person" violent crime and further explains in a footnote that this particular phrasing "leaves aside 'sui generis' crimes such as treason and espionage, as well as offenses such as air piracy and the federal 'drug kingpin' law that inherently involve a reckless disregard for human life on a large scale."

September 14, 2007 at 11:03 AM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference A strong argument for commuting Patrick Kennedy's death sentence:

» Berman on Patrick Kennedy from Sex Crimes
Professor Berman has a wonderful post about the problems with the death sentence of Patrick Kennedy for child rape and the appeal of that sentence. From Sentencing Law Policy:Because the petition is so strong and effective, I have decided that [Read More]

Tracked on Sep 14, 2007 6:49:11 PM


"I have a very hard time seeing how Louisiana's executive officials can feel constitutionally certain about moving forward with the execution of Patrick Kennedy."

What? You don't see the political reasons, and the view that the Roberts court is going to let the states kill anyone they want?

Posted by: S.cotus | Sep 14, 2007 11:47:22 AM

If I've learned anything from 10+ years of state-court-watching it is this: in Louisiana, anything can happen.

Posted by: Anne | Sep 14, 2007 11:58:49 AM

It's amazing how everone ignores the more "conservative" comment in Doug's post -- ie., being concerned about Jeff Fisher's argument that it is always unconstitutional to impose capital punishment for a crime that doesn't result in death. I am more than troubled by that argument; it is out and out wrong.

Posted by: Steve | Sep 14, 2007 12:02:54 PM

A good example of a nonfatal case where the death penalty would be warranted as a matter of "just deserts" would be the torture case from West Virginia that was in the news recently.

As a policy matter, I would still be against it on deterrence grounds. We should always maintain a meaningful differential between killing the victim and not. But the death penalty in such a case would not violate the Eighth Amendment.

Politically, the chances of the governor sticking her neck out while the possibility of judicial relief remains are nil.

As for "the view that the Roberts court is going to let the states kill anyone they want," anyone who has that view after the Texas cases of last term has a very large blind spot.

Posted by: Kent Scheidegger | Sep 14, 2007 12:19:30 PM

"We should always maintain a meaningful differential between killing the victim and not."

I agree with this completely. It troubles me that people equate rape with murder. Yes, rape is a horrible crime. But having survived it myself, I can say for sure that I am not "as good as dead." The injuries done by rape, even child rape, CAN be healed. So far, death cannot. I think we need to at least keep this theoretical difference alive so that we don't feed into the "if I'm gonna rape her, I may as well kill her & shut her up" mentality.

Posted by: Law Clerk | Sep 14, 2007 1:10:54 PM

Regardless of whether one supports the death penalty for child rape or not, this case certainly does not present the "worst of the worst" child rapists. I think if the Court wanted to be temperate here, they could grant cert on only the question presented and still easily reverse (saving for another day the first issue).

How does 1) repeating the crime itself and 2) repeating a common element of the crime (i.e. under 12) sufficiently narrow the class of death-eligible defendants? At a minimum, there should at least be a prior conviction requirement. Setting aside my views on the death penalty, this man does not deserve to die. Even if Mr. Kennedy did commit the act (which the cert petition raises some serious questions about), his crime pales in comparison to other death cases.

Professor Berman is correct. Some type of action (whether it be executive or judicial) is needed to correct this injustice.

Posted by: DEJ | Sep 14, 2007 2:06:37 PM

Putting aside innocence issues, I would hardly think that executing a guy who rapes an 8 year old girl is an injustice. Constitutionally suspect--maybe, harsh--yes, unjust--decidedly not.

The narrowing argument is a good one, although it seems that there are a lot fewer permutations upon which to separate death from non-death with child rape than murder.

I feel strongly that the people, through their elected representatives, have a right to impose this punishment on child rapists. The crime is revolting enough, I think, that we don't really need to worry about who is the "worst of the worst".

Were I a legislator, I don't believe I would vote for the Louisiana statute for the reasons given by Kent and law clerk.

Posted by: federalist | Sep 14, 2007 3:10:18 PM

I don't care whether I would vote for the law were I a legislator. As a Judge I would not use the Constitution to impose my personal moral views on the rest of the 50 states that death is appropriate only in response to a crime that causes a death. But I guess that makes me a dinosaur in this day and age.

Posted by: Steve | Sep 14, 2007 4:15:46 PM

Where do you get your data, federalist? I can't find a poll in Louisiana on this issue. However, there are the polls in ATKINS V. VIRGINIA that found 68% in Louisiana were against the death penalty for the mentally retarded; so if Kennedy is, "the people" are against executing him even if he murdered. He didn't murder here, so would they be against executing him? The laws politicians pass are not necessarily what the people want.

Posted by: George | Sep 14, 2007 4:23:15 PM

George, the bottom line is that we do things through our elected representatives in this country (referendums etc. aside).

Posted by: federalist | Sep 14, 2007 5:35:07 PM

Frankly, if the petition is accurate, I'm just worried that Kennedy might be innocent...

I don't think these marginal deterrence arguments ("what will stop rapists from killing their victims?") are convincing. Whatever the worst possible sentence is, you'll always have a marginal deterrence problem once you decide to impose it. (A cop-killing bank robber could always kill another cop, for example.) In practice, though, even if the death sentence is *possible* for child rape, it will be *very likely* for child rape and murder. By the same token, if the death sentence were abolished, we could still punish child rape with life in prison. The marginal deterrent for the rapist not to kill his/her victim would arise from the different expected sentences, even when the maximum legally possible sentence is identical.

Posted by: matth | Sep 14, 2007 6:03:47 PM

The child rape death penalty is very different in motive from those for espionage, treason, and aggravated kidnapping all of which address situations in which a death is presumed to be very likely, but proof of a death might be difficult.

Mental retardation, or a lack of sufficient aggravating factors and the presence of sufficient mitigating factors, could provide an avenue for Patrick Kennedy to avoid the death penalty in this case without forcing the high court to resolve the constitutionality of child rape death penalties generally. This obviously would be good news for Kennedy, but would render the case unhelpful in parsing future cases -- a result that the current SCOTUS might not be uncomfortable with, and which might prevent the issue from returning for some time.

Juries are increasingly reluctant to send murderers to death row. There are on the order of 100 people serving life in prison without parole for every one sentenced to death. Almost all other states limit the penalty to repeat offenders, also reducing the likelihood of lots of prosecutions even seeking the death penalty. If Kennedy's death sentence is reversed on other grounds, it might be a half a decade before the issue is squarely presented again.

Posted by: ohwilleke | Sep 16, 2007 10:36:30 PM

To be clear, almost all other states limit the death penalty for child rape to repeat offenders, not the death penalty generally.

Posted by: ohwilleke | Sep 16, 2007 10:40:59 PM

This was a brutal rape where he body was severely damaged. He was convicted. The child was 8 years old innocently sorting her girl scout cookies and he savagely raped her. Give him death aqnd do it soon. Give these pevert what they need and rid society of them. The death sentence in most places is lethal injection, no way near the violence they did.

On the morning of March 2, 1998, a loser named Patrick Kennedy brutally raped his wife’s eight-year-old daughter.

Afterward, Kennedy called 911 and told the dispatcher that two black boys had raped the girl in the yard. Likely under threat by the rapist, she confirmed Kennedy’s story.

John Evander Couey, center, speaks to public defender Daniel Lewan, left, and Morris Carranza during the second day of the penalty phase in his trial in Miami Wednesday, March 14, 2007. Couey was found guilty of kidnapping, raping and killing nine-year-old Jessica Lunsford. (AP Photo/Al Diaz, Pool) The child’s injuries were extensive. According to the opinion, the victim’s “predominate injury was vaginal with profuse bleeding. Her entire perineum was torn and her rectum protruded into her vagina.” Dr. Scott Benton, who testified at the trial, said the girl’s injuries “were the most serious he had seen, within his four years of practice, that resulted from a sexual assault.”

Police suspected Kennedy was lying from the beginning. Their suspicions were confirmed after learning that he’d called his employer before calling 911, said he wouldn’t be able to come to work, and asked how to get blood out of white carpet. His wife’s daughter had “just become a young lady,” he reportedly said.

Kennedy was found guilty of aggravated rape and sentenced to death.

Posted by: defend | Oct 1, 2007 6:15:00 PM

If you can't do the time then don't do the the crime!, "EXECUTE HIS ASS" and yes the death penalyy should be allowed for such crimes if it 's shown that witout a reasonable doubt the individual is GUILTY. execute his ass, don't let him live his life in prison end it now, all states should uphold this law, she and any child raped, molested, abused by any sane adult should pay the price.

Posted by: | Jun 25, 2008 12:08:54 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB