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April 8, 2008

SCOTUS Kennedy capital child rape case buzz starting

Next week the Supreme Court will hear oral argument on the constitutionality of the death penalty for a child rape offense in Kennedy v. Louisiana.  As evidenced by this article in USA Today, the pre-argument media buzz is starting.  Here are snippets:

The Supreme Court will weigh the constitutionality of the death penalty for child rape next week, in the case of a Louisiana man convicted of raping his 8-year-old stepdaughter. The dispute, closely followed by state officials, social workers and defendants' rights groups, marks the first time since 1977 that the justices will consider whether rape can be punished by death....

Several states, including Missouri, have signaled that if the court permits the death penalty for child rape in Louisiana, they may try to enact such laws. Five states already plainly allow capital punishment for raping young children.

Social workers warn that if the court sanctions the penalty for child rape, it could further discourage reporting of the crime because in the majority of child sexual assaults, the attacker is a relative or friend of the victim....

April 8, 2008 at 09:50 AM | Permalink


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As Doug Berman notes, the coverage of Kennedy v. Louisiana has begun with oral arguments on the horizon (April 16). Sex Crimes will be covering the case extensively starting this Monday. In the meantime, I'll be constantly updating the Kennedy [Read More]

Tracked on Apr 9, 2008 10:54:21 AM


My gut instinct in this case is that there is, at least, a five justice majority to strike down the Louisiana law. Kennedy, it seems to me, given his prior stance on executions of the retarded and juveniles, is likely to take a similar stance this case. Kennedy and those on the left of the court may also be informed by the international rarity of countries authorizing the death penalty for rape.

If that is what happens, then there could be at least two different kinds of rulings.

One would be a broad ruling, disallowing the death penalty for child rape definitely, or perhaps even more broadly, including dicta casting doubt on the death penalty in cases where no one has died and there is not a strong presumption that the criminal act will or has cause death -- such as espionage case and cases where there is a kidnapping, the victim has not been liberated and the victim's whereabouts are unknown. A very broad ruling would put the federal drug kingpin death penalty in question.

It could also make a narrower ruling, disallowing the death penalty for first offense child rape with no distinguishing aggravating factors and no extraordinary proof to provide certainty, but holding the option open for more extreme cases short of death, for example, for recidivist serial child rapists in cases where there is DNA evidence, or perhaps for cases involving kidnapping and torture causing seriously bodily injury in connection with child rape. The reasoning for a narrower ruling would be that many states enacting child rape laws in recent times have enacted some form or another of limitation on the death penalty to an especially narrow subset of child rape cases, while Louisiana appears to be alone in the breadth of its statute.

Posted by: ohwilleke | Apr 8, 2008 11:45:05 AM

This is the inexorable path to capital punishment for all sex offenders. The "heinous" nature of child rape is not very different from the child pornography offenses, either, as long as we buy the "revictimization" theory (or the market theory, for that matter; I suppose the most apt analogy would be soliciting a hitman, to get us back to traditional DP jurisprudence).

I don't see Justice Kennedy backing LA's law either, but...this could be another crazy concurrence moment, complete with a disguised and incoherent factor test. Although I would like to believe otherwise, I suspect these laws enjoy strong support from the American public. And since those concurring opinions are all that keeps us one step away from totalitarianism, I guess I'll take it.

Posted by: Alec | Apr 8, 2008 8:01:14 PM

"Totalitarianism"?? Alec, are you kidding?

Posted by: federalist | Apr 8, 2008 8:13:55 PM

In many ways, things would be so much simpler if we simply returned to the common law's tradition of punishing all felonies with death. One downside (or upsdide) of this policy would be that the incomes of defense attorneys would increase enormously.

Posted by: Michael Levine | Apr 8, 2008 9:07:03 PM

Federalist: Not by much.

Posted by: Alec | Apr 8, 2008 9:23:27 PM

If Texas had this law we might not be witnessing the television spectacle of 400+ children being taken away from the compound in El Dorado.

Posted by: M.P.B. | Apr 9, 2008 12:17:21 PM

MPB, nothing mere mortals do can deter freaks like those. Cults operate on an entirely different psychological level.

Keep in mind that one of Kennedy's crazy concurrences was in Kansas v. Hendrick. While Kennedy was less willing to shread the constitution to "protect the children" than the plurarity opinion, he still gave states an extreme amount of deference to "protect the children" - of course, maybe the notion that pedophilia can be treated will lead him to vote against Louisiana's law.

I expect a more narrow opinion striking down Louisiana's law due to its structural problems, but leaving the door open for non-homicide crimes to be eligible for the death penalty.

Posted by: Zack | Apr 9, 2008 2:22:34 PM

Zack: But don't forget, there will be factors to guide us when applying the DP to non-homicide offenses. Or lofty language. Or something.

Posted by: Alec | Apr 9, 2008 3:28:41 PM

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