Merits brief of defendant in Kennedy, the SCOTUS capital child rape case

As noted in posts in this Kennedy case archive, the Supreme Court later this term will hear Kennedy v. Louisiana, a case allowing it to review the constitutionality of state laws that make the death penalty a punishment for the crime of child rape.  (Over at his great blog Sex Crimes, Corey Yung now has this new resource page with on-line materials related to Kennedy v. Louisiana).  This week the petitioner filed his merits brief, which can be downloaded below.  Here are snippets from the argument summary:

The death sentence imposed on petitioner constitutes cruel and unusual punishment in violation of the Eighth Amendment.

I. Punishing the crime of child rape with the death penalty cannot be squared with this Court’s decision in Coker v. Georgia, 433 U.S. 584 (1977). There, six Justices agreed “that the death penalty, which is unique in its severity and irrevocability, is an excessive penalty for the rapist who, as such, does not take human life.” Id. at 598 (plurality opinion) (quotation omitted). Subsequent decisions have made clear that capital punishment is categorically impermissible for person-on-person violence that does not result in death, and in which the offender does not attempt or intend to kill or display reckless indifference toward human life....

II. Even if it were permissible under some circumstances to impose the death penalty for child rape, petitioner’s sentence would still violate the Eighth Amendment. This Court’s jurisprudence requires capital sentencing statutes genuinely to narrow the class of death-eligible defendants in order to separate the most culpable offenders from others who have committed the same crime. But Louisiana’s capital rape law contains no narrowing mechanism that can serve to differentiate petitioner’s case in any rational way from the many child rape prosecutions in the State in which the death penalty is neither sought nor imposed.

Download kennedy_v. La merits.pdf