Is it cruel and unusual punishment under the Eighth Amendment to sentence a person to death solely for the rape of a child? If not, does Louisiana's capital rape law nevertheless violate the Eighth Amendment by failing to providing sufficient narrowing guidance to juries concerning who, among those guilty of this crime, should be eligible for the death penalty?
A Louisiana jury found Patrick Kennedy guilty of aggravated rape of his eight-year-old stepdaughter under Louisiana's aggravated rape statute. This statute provided a sentence of death for the rape of a child under twelve years of age. After finding aggravating circumstances, as required by Louisiana law, the jury recommended Kennedy to be sentenced to death. After the Louisiana Supreme Court affirmed his conviction and sentence, Kennedy petitioned the United States Supreme Court to invalidate the sentence on either of two grounds: first, that imposing a death sentence for rape, where the victim does not die, constitutes disproportionate, and therefore "cruel and unusual punishment" under the Eighth Amendment; second, that the aggravating circumstances in the case-that the offender was perpetrating an aggravated rape and the victim was under twelve years old-merely repeated elements of the underlying crime and therefore did not sufficiently limit eligibility for a death sentence to avoid arbitrary sentencing. Kennedy's first contention asks the Court to revisit its decision in Coker v. Georgia, which invalidated, on Eighth Amendment grounds, a death sentence for the rape of a sixteen-year-old.
Questions as Framed for the Court by the Parties
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.
The following facts are taken from the opinion of the Louisiana Supreme Court, State v. Kennedy, 957 So.2d 757 (La. 2007), and the Verdict, Agreement and Settlement of the District Court, in this case, 2003 WL 2473647:
In 2003 a jury in the district court of the parish of Jefferson, Louisiana, found Patrick Kennedy guilty of the 1998 rape of his then eight-year-old stepdaughter. In line with the jury's recommendation, the court sentenced Kennedy to death.
The State had charged Kennedy with aggravated rape of a child under Louisiana's capital rape statute, R.S. 14:42 D.(2). At the time of Kennedy's trial, this statute made the death penalty (i.e., a "capital verdict") available for defendants who raped a child under twelve years of age. The alternative sentence was life imprisonment at hard labor without parole. The district attorney had sought the death penalty in Kennedy's case.
In the sentencing phase of the trial, the jury found two aggravating circumstances-the offender was engaged in the perpetration of aggravated rape and the victim was under twelve years old. A finding of at least one statutory aggravating circumstance is necessary before a court can impose a death sentence, according to a separate Louisiana law.
Kennedy appealed his conviction and sentence to the Louisiana Supreme Court. Among his sixty-nine allegations of error, Kennedy claimed that his death sentence violated the Eighth Amendment's prohibition against cruel and unusual punishment because it was a disproportionate penalty for a crime that did not result in loss of life. In its 1977 decision, Coker v. Georgia, the United States Supreme Court had struck down a death sentence for the rape of a sixteen-year-old on Eight Amendment grounds.
Kennedy also objected to the procedure Louisiana used to determine his eligibility for the death penalty-specifically, the means of satisfying the state's "aggravating circumstances" requirement. Both aggravating circumstances the jury had found had simply restated elements of Kennedy's crime. Kennedy said the procedure, therefore, did not sufficiently narrow the court's discretion to ensure that the death penalty wouldn't be imposed arbitrarily and capriciously.
The Louisiana Supreme Court affirmed the district court's conviction and sentence. It rejected Kennedy's claim that imposing the death sentence solely for rape was inherently unconstitutional, as a disproportionate penalty. The court reasoned that Coker had addressed only the rape of an adult. The Louisiana court also said evidence of public attitudes (which the U.S. Supreme Court looks to in determining sentences' proportionality) supported allowing death sentences for rape of a child.
The Louisiana Supreme Court said four states in addition to Louisiana had recently allowed the death penalty for such crimes. The Louisiana court acknowledged this number was small, but emphasized the emergence of a trend toward making rape of a child a capital crime. The court also looked at an increase in the availability of the death penalty for other non-homicide crimes, such as espionage and drug trafficking. Again, the court noted the trend was toward expanding the availability of the death penalty for non-homicides.
The Louisiana Supreme Court also rejected Kennedy's argument that the aggravating circumstances used in the case did not sufficiently narrow the group of persons eligible for death sentences for this crime. The court said Louisiana's child rape statute itself provided the necessary narrowing of the eligible group. The court said that where a statute itself narrows the group of death-penalty-eligible defendants, the United States Supreme Court has allowed courts to rely on aggravating circumstances that simply repeat elements of the crime.
Kennedy petitioned the United States Supreme Court for a certiorari. The Court granted certiorari on January 4, 2008, on the two questions noted above.
Does the Eighth Amendment Allow Capital Punishment for Child Rape?
Kennedy argues that the Eighth Amendment will not tolerate imposition of the death penalty for rape of a victim of any age. Louisiana contends that the death penalty is not cruel and unusual punishment for the rape of a child.Kennedy reads Coker v. Georgia as disallowing capital punishment for crimes other than murder. According to Kennedy, Coker categorically states that if a criminal did not take a human life, the death penalty is disproportionate. Kennedy emphasizes that Coker did not distinguish adults from children. In contrast, Louisiana narrowly reads Coker to hold that the Eighth Amendment will not tolerate capital punishment for the rape of an adult woman. Louisiana stresses that Coker contained fourteen references to an "adult woman" in its concurring, dissenting, and plurality opinions. Louisiana contends that these references imply that the permissible punishment for rape of a child remains an outstanding question under Coker. Louisiana cites several other State supreme courts that have interpreted Coker in this way.
Additionally, Kennedy and Louisiana differ concerning the implications that treatment of other non-homicide crimes have for the constitutionality of capital child rape laws. Kennedy argues that crimes that are not person-on-person (i.e., terrorism, espionage, air piracy) are not in the same category as murder. Therefore, imposing the death penalty for these crimes does not contradict the what he argues is the central theme of Coker, that the only person-on-person crimes for which the death penalty is appropriate are those resulting in death. Kennedy supports his argument against expanding the review to include non-person-on-person crimes by noting the Coker Court's refusal to broaden the scope of its decision in this way.
Conversely, Louisiana focuses on the fact that prosecutions for non-person-on-person crimes are similar to murder prosecutions in that they focus on the culpability of the individual. Louisiana points out that in decisions determining that robbery and kidnapping are not constitutionally eligible for the death penalty, the Court announced no bright-line rule that the absence of death in these crimes was decisive. Rather, the Court first determined that the death penalty was disproportionate to the underlying crimes and then pointed out that one factor was the absence of death. In Louisiana's view, the Court confirmed that, compared to these crimes, rape is the "ultimate violation of self" short of homicide. Therefore, rejection of the death penalty for other non-homicide offenses does not necessarily mean that the death penalty is an unconstitutional punishment for rape. Louisiana notes that fifteen jurisdictions allow capital punishment for non-homicide crimes. Other states have pending legislation allowing a death sentence for non-homicide crimes; if all such legislation passes, 46 percent of the states will allow the death penalty for non-homicide crimes.
The Roper-Atkins Two Prong Analysis
The Court's outlined its process of analysis in death penalty cases in Roper v. Simmons, 543 U.S. 551 (2005), and Atkins v. Virginia, 536 U.S. 304 (2002). These cases establish a two-pronged method of evaluation. First, the Court examines the "objective indicia of consensus" to determine if U.S. jurisdictions tend to allow capital punishment for a crime. Second, the Court exercises its "independent judgment" as to whether capital punishment is disproportionate according to the "evolving standards of decency" contemplated by the Eighth Amendment.
Kennedy argues that the first prong of the Roper-Atkins scheme calls for a reversal in this case. He says that there is a national consensus against punishing rape by death. Kennedy points out that in Enmund v. Florida, the Court found that eight states' authorization of the death penalty for felony murder did not establish a national consensus. Further, Roper and Atkins found the execution of juveniles and mentally retarded individuals, respectively, unconstitutional despite authorization under 21 different state schemes. Finally, Kennedy underscores that of the five states authorizing capital punishment for rape, the four others (South Carolina, Oklahoma, Montana, and Texas) require prior conviction for a sexual crime. Further, Kennedy finds the "exceptionally infrequent" use of the death penalty undermines those laws that remain on the books. No one has been sentenced to death for any kind of rape for over 43 years. In 180 rape prosecutions, Louisiana prosecutors have sought the death penalty only five times. Kennedy argues the trend, contrary to the Louisiana Supreme Court's assertion, is away from allowing the death penalty, and, finally, that the international trend is away from the death penalty as well. Coker
Louisiana counters that "evolving standards of decency" require affirmation of the Louisiana Supreme Court's decision. First, Louisiana underscores that legislative acts are presumed to be valid because legislatures are the representatives of the people. Further, capital punishment is an option for some crimes in 37 American jurisdictions (including the federal government). Louisiana notes an upward if slight, trend of states allowing capital rape: five states now have some form of this provision (Georgia, Oklahoma, Texas, South Carolina, and Louisiana), and three more states have legislation in the works (Alabama, Mississippi, and Missouri). Finally, Louisiana points out that finding a practice unconstitutional simply because it is rare goes against the nature of the "evolving standards" prong of the Atkins-Roper test because standards change.
Kennedy argues that the second prong of the analysis likewise requires reversal because the Court's independent jurisprudence already supports the proposition that the death penalty for rape is unconstitutional. The Court looks for the twin factors of retribution and deterrence in determining whether a punishment is, in its independent judgment, proportionate to a crime. Kennedy argues that both factors favor of reversal in this case. Kennedy underscores the idea that because capital crimes require additional resources to prosecute, prosecutors reduce charges in serious rape cases to avoid the overload, thereby reducing any deterrent effect the 1995 amendment may have had. Finally, Kennedy focuses on the special risk of wrongful execution in capital rape cases. He argues that plea bargains mean that those accused of capital rape who maintain their innocence are in fact those most likely to receive the death penalty.
Louisiana argues that as the Court's prior jurisprudence is silent on capital rape, its independent judgment in this case may legitimately lead to a finding that capital rape is constitutional. Louisiana also highlights the fact that in five capital rape cases, two returned death sentences. Further, of 180 capital rape prosecutions cited by Kennedy, Louisiana says 112 do not provide a clear indication concerning the effect of plea bargains on the number and disposition of death-penalty cases. This supports the proposition that neither juries nor prosecutors find the death sentence disproportional. Finally, to emphasize the lifetime impact of sexual abuse, Louisiana cites high physical and psychological disorder rates among victims, with a correlation between more severe abuse and more significant long-term harm.
Does Louisiana's Capital Rape Law Sufficiently Narrow the Class?
Kennedy contends that the Supreme Court has long been wary of allowing unguided jury discretion in capital sentencing because of the potential for abuse and discriminatory application. Kennedy therefore argues that aggravating factors that duplicate an element of the crime should only pass constitutional muster where the definition of the crime itself sufficiently narrows the class of death-eligible offenders. Generally, per Kennedy, an aggravating circumstance is the path toward a legitimate (i.e., sufficiently narrow) class. But the aggravating factors for capital rape in Louisiana only restate the crime of conviction and one of its elements. The age of the victim does not appropriately narrow the class because it allows all defendants charged with the crime to be subject to the death penalty. Kennedy maintains that under the Supreme Court's decision in Lowenfield v. Phelps, this aggravating factor is not constitutionally sufficient because it adds nothing "above and beyond" the offense itself. The potential consequences of such insufficiently constrained discretion are delineated in the ACLU-NAACP amicus brief, which emphasizes historic and lingering racial bias as a factor in death penalty sentencing.
Louisiana counters that its law sufficiently narrows the class of offenders because of the restrictive definition of the offense of capital rape. Court precedent under Lowenfield v. Phelps requires capital sentences to be part of a logical scheme in which the imposition of the death penalty is justified and limited to a narrow class. According to Louisiana, Section 14:42 satisfies Lowenfield's standard by restricting the death penalty to rapes consisting of anal or vaginal intercourse with a child twelve or under. There is no need for an aggravating circumstance outside of the criminal definition itself in Louisiana's view.
Patrick Kennedy is the first defendant in decades to be sentenced to death for rape, and the United States has not executed anyone for a crime other than murder since 1964. Since Kennedy's conviction, Louisiana has placed a second convicted person on death row for rape of a child. So far no other state judiciaries have followed Louisiana's lead. Nevertheless, several states and the federal government have recently enacted laws that allow death sentences for non-homicides, including not only rape of a child, but also espionage and drug trafficking. The United States Supreme Court has not ruled on these recent enactments-Louisiana's Kennedy decision represents the first death sentence handed down under the current laws.
Through the mid-twentieth century, several states did impose the death penalty for non-homicide crimes, including rape, kidnapping, and felony murder (death inflicted during commission of another felony, regardless of the defendant's direct responsibility for the victim's death). But in the mid-1970s, the Supreme Court overturned several state death sentences for such non-homicide crimes. In Coker v. Georgia, the Court struck down a death sentence for the rape of a sixteen-year-old girl and held that imposing the death penalty for rape of an adult that did not result in death was grossly excessive and disproportionate-and therefore "cruel and unusual"-punishment under the Eighth Amendment.
In Trop v. Dulles, the Supreme Court said that its judgment of what constituted cruel and unusual punishment was based on "the evolving standards of decency that mark the progress of a maturing society." The Supreme Court emphasized in Coker that its determination of those standards would be guided by objective evidence of the country's current views. This evidence included both the number of states that allowed the death penalty for the given crime and consistent trends in legislative enactments concerning the penalty. Further evidence came from jury sentencing decisions in cases where the state had sought the death penalty for the crime in question.
But the Court also allowed some scope for its independent judgment as ultimate arbiter of a sentence's proportionality. In exercising that judgment, the Court has sought guidance from a wider array of sources, including professional societies and the international community.
In deciding Kennedy v. Louisiana, the Court will first check in with the American public. What will the Court see when it looks for objective evidence of U.S. standards of decency on penalizing rape of a child?
According to the Louisiana Supreme Court and the Louisiana district attorney, it will see a consistent recent trend in favor of allowing death sentences for such crimes. Nevertheless, the total number of states with such provisions is still small. The Death Penalty Information Center's information shows five states with very-recently-enacted laws making rape of a child a capital crime. Several of these states allow the death penalty only if the defendant had a previous conviction for a similar offense.
The New York Times notes the trend toward allowing the death penalty for rape of a child is a response to public outcry against sex crimes victimizing children. States supporting Louisiana seem to bear this out, as they note the "unspeakable" and "irreparable" nature of the crime of child rape. Such outrage has also found expression in legislation concerning registering, monitoring, and punishing sex offenders (see, e.g., Megan's Law). One model statute, Jessica's Law, which has been enacted with some variation in a number of states, provides for monitoring of released sex offenders and mandatory minimum sentences for rape of a child. When Texas enacted its version of Jessica's Law, it added a capital punishment provision for repeat offenders. An amicus brief submitted in this case by various social worker organizations and anti-sexual-assault groups expresses concern about making child rape without murder a capital crime. It argues that such laws will be counterproductive for two main reasons. First, they will discourage victims from coming forward where the perpetrator is a relative. Second, they will remove any disincentive the perpetrator has to killing the victim. In another brief, the National Association of Criminal Defense Lawyers raises questions about the accuracy of convictions for child rape, based primarily on children's susceptibility to suggestion. The brief argues that these questions argue for withholding the ultimate, irreversible punishment of death in such cases.
Beyond changes in punishment for rape of a child, many states and the federal government have enacted death penalty provisions for other non-homicide crimes, ranging from drug-trafficking to treason. Louisiana says these laws provide even stronger evidence, in both absolute numbers and trend, in support of allowing death sentences for non-homicides.
At the same time, both the Supreme Court and the rest of world seem to be moving in the opposite direction. In 2002, the Court invalidated use of the death penalty for mentally retarded persons. In 2005, the Court did the same for defendants who were juveniles at the time of their crime. Britain has not authorized the death penalty for rape since 1841, according to the British Law Association amicus brief in this case, and no Western democracy currently does so. The Supreme Court has paid attention to such international norms in its recent death penalty decisions (see Roper v. Simmons, section IV). However, not all of the Justices agree that such norms are appropriate reference points for the Court's Eighth Amendment analysis.
The United States Supreme Court's decision in this case will clarify the constitutionality of capital child rape statutes. Whatever the outcome, the decision will have far-reaching consequences for the independence of State legislatures regarding the imposition of the death penalty. If Kennedy's arguments are persuasive, and the Court accepts a broad reading of Coker v. Georgia , the capitalization of person-on-person non-homicide crimes will be beyond the reach of State legislatures. If Louisiana's arguments are persuasive, Coker's holding will at the least be narrowed to prohibit capital punishment for rape of an adult woman, leaving State legislatures free to capitalize or re-capitalize other non-homicide crimes. Such a holding could rely either on a new interpretation of Coker itself or on the application of Coker's criteria to contemporary standards of decency. Alternatively, the Court could agree with Kennedy's second argument that Louisiana has not provided a sufficient hedge against arbitrary exercise of discretion.
Molly Curren Rowles
- Amnesty International, USA: Breaking a lethal habit, a look back at the death penalty in 2007 accessed at http://www.amnestyusa.org/document.php?id=ENGAMR511972007&lang=e
- Death Penalty Information Center, http://www.deathpenaltyinfo.org
- Additional links on the Death Penalty available at http://www.clarkprosecutor.org/html/links/dplinks.htm