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Supreme Court is to examine possibility at urging of nine states in favor of executions
By Jennifer A. Dlouhy
Hearst Newspapers
Published on Sunday, Apr 13, 2008
WASHINGTON: There are more than 3,300 people on death row in the United States — but only two of them await execution for crimes that didn't involve murder.
This week, the Supreme Court will consider the case of one of them, Patrick Kennedy, a Louisiana man convicted of raping his 8-year-old stepdaughter.
The case comes before the nation's highest court at a time when the justices are becoming increasingly skeptical about the death penalty and willing to curb its use.
Texas and eight other states have intervened in Kennedy's case to urge the Supreme Court to allow the death penalty for child rape. Texas Solicitor General Ted Cruz, who leads the group, will appear before the justices Wednesday to press the views for those states.
In court papers, Cruz argues that capital punishment is warranted in these cases because child rape ''is an irreparable crime'' that permanently damages ''the heart, mind and soul of a young child.''
The Supreme Court has already ruled that the death penalty is an excessive — and therefore, unconstitutional — punishment for rape crimes involving a 16-year-old. However, the panel has never ruled on whether it is an appropriate penalty for raping younger children.
Kennedy, 44, was convicted in 2003 of raping his stepdaughter five years earlier. Kennedy called 911 to report the 1998 assault and has claimed that two neighborhood youths were responsible.
After Kennedy's conviction, a jury unanimously sentenced him to death.
In May 2007, the Louisiana Supreme Court affirmed the death sentence, saying it did not constitute ''cruel and unusual'' punishment.
Seeking a consensus
In arguments Wednesday, a major issue will be whether there is a national consensus on executing convicted child rapists. That's because in two recent rulings the Supreme Court has cited public sentiment in deciding to bar capital punishment for mentally retarded convicts and for people who committed crimes as juveniles.
In the 2002 ruling in the mentally retarded convict case, the court concluded that its survey of the laws of the land showed that a ''national consensus (had) developed against executing retarded convicts.''
Three years later, in 2005, the Supreme Court cited the decision of five states to abolish the death penalty for juveniles and ''evolving standards of decency'' to declare that it was unconstitutional to execute criminals who had committed their crimes before age 18.
The attorneys for the states of Texas and Louisiana argue in court briefs that if the high court is going to track trends, then the justices should take note that a number of states have expanded the list of crimes that can be punished by death. Five states have made child rape a capital crime since 1996; the most recent such law was enacted by Texas last year.
Louisiana's attorney, Juliet Clark, calls the death penalty a ''reasoned expression of society's moral outrage at this crime.''
Cruz said states have stiffened penalties for child rape because lawmakers have learned more about the lasting damage to victims.
''As the prolonged effects of child rape have become better known and society has become ever more aware of the . . . depravity of the worst child sex offenders, societal standards have progressed to the point where capital punishment is recognized as proportional for the crime of child rape,'' Cruz argues in legal filings.
State legislatures should be free to adopt death penalty laws that reflect the way its residents feel about ''the just deserts for certain capital crimes,'' Cruz said.
Five states in favor
At least five states now authorize the death penalty for crimes involving child rape, though all but Louisiana limit capital punishment to repeat offenders. The five states are Louisiana, Montana, Oklahoma, South Carolina and Texas.
Kennedy's lead lawyer, Jeffrey Fisher, argues in court papers that even if some state legislatures have decided otherwise, the public ''overwhelmingly . . . views capital punishment as excessive punishment for child rape.'' He argues that there is a ''national consensus against such punishment'' for nonmurder crimes.
The proof, Fisher says, is the reluctance of prosecutors to seek the death penalty for nonmurder crimes.
Kennedy's lawyers also are imploring the high court to consider the use of the death penalty worldwide. ''Today, no Western nation authorizes the death penalty for any kind of rape,'' the lawyers say.
Only one other person — another Louisiana man who was convicted late last year — is on death row for child rape.
WASHINGTON: There are more than 3,300 people on death row in the United States — but only two of them await execution for crimes that didn't involve murder.
Get the full article here.
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