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September 11, 2007

When will SCOTUS address the constitutionality of the death penalty for child rape?

At SCOTUSblog, Lyle Denniston has this extended post discussing the filing of a petition for writ of certiorari in Kennedy v. Louisiana.   The petition is available at this link, and here is the questions it presents:

1. Whether the Eighth Amendment’s Cruel and Unusual Punishment Clause permits a State to punish the crime of rape of a child with the death penalty.

2. If so, whether Louisiana’s capital rape statute violates the Eighth Amendment insofar as it fails genuinely to narrow the class of such offenders eligible for the death penalty.

Regular readers know these questions have been widely debated in lower courts and law review pages, Kennedy seems to be the first well-positioned case for the Supreme Court to take up these issue. 

In my view, it is inevitable that the Supreme Court will address the constitutionality of capital punishment for child rape before anyone is actually executed for child rape.  Still, one might develop a number of interesting Bickelian arguments for why the Justices should consider ducking this issue right now and taking it up only if and when this case goes through state and federal habeas review.

Some related posts:

September 11, 2007 at 06:34 PM | Permalink


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Tracked on Sep 11, 2007 10:07:28 PM


Doug, would review by the Supreme Court be available on federal habeas review? Would the state court decision upholding the death sentence be contrary to clearly established federal constitutional law as interpreted by the supreme court? Maybe they have to take it on direct review.

bruce cunningham

Posted by: bruce cunningham | Sep 11, 2007 7:28:52 PM

How about if SCOTUS takes it after a state habeas action, which I assume is available under LA law? Waiting gives the state another chance to kick the case, perhaps on effective assistance grounds or other bases.

Also, we all know that what is clearly established is what Justice Kennedy says is clearly established...

Posted by: Doug B. | Sep 11, 2007 8:04:44 PM

wouldn't you have the same problem waiting until after state post-conviction review? To file a state post-conviction pleading ( a Motion for Appropriate Relief in NC) I have to allege that the trial court's failure to grant the motion striking the death penalty as a possible punishment was in violation of the federal constitution. I am confident that a state post conviction judge would dismiss the motion for appropriate relief on the grounds that it is not clearly estabished federal law that imposition of the death penalty for a non homicide is an eighth amendment violation. (I can't imagine a superior court judge on his own declaring the statute facially unconstitutional.) Seems to me the time for the Court to grapple the issue is coming directly out of the state supreme court.

bruce c

Posted by: bruce cunningham | Sep 12, 2007 7:57:15 AM

In addition, the claim would probably not be cognizable in state collateral review. Usually that's for extra-record claims, and you can't just relitigate stuff from direct review.

Posted by: anonymouse | Sep 12, 2007 1:15:20 PM

The waiver for failure to present the issue on direct review can be circumvented by a claim of ineffective assistance of counsel for failure to raise the claim on direct review. So, that is not the major problem. bruce c

Posted by: bruce cunningham | Sep 13, 2007 7:57:24 AM

Sounds like the petitioner has a strong innocence claim.

Posted by: e | Sep 14, 2007 12:17:23 PM

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