WASHINGTON – Patrick Kennedy was sentenced to be executed,but his fate awaits a decision from the Supreme Court,which heard arguments in his case Wednesday.
Kennedy was convicted in Louisiana in 2003 and sentenced to death for raping his 8-year-old stepdaughter. The Louisiana State Supreme Court upheld Kennedy's sentence last year.
The Supreme Court heard arguments about whether those convicted of child rape,but not murder,can be executed. Specifically,the court questioned whether the punishment violates the Eighth Amendment's ban on “cruel and unusual punishment.”
The Kennedy v. Louisiana arguments came on the same day that Chief Justice John G. Roberts Jr. announced a 7-2 vote accepting that lethal injection,as practiced in Kentucky and 29 other states,does not violate the Constitution. The court heard arguments in Baze v. Rees in January.
The lethal injection process in question uses a combination of three drugs. The first induces unconsciousness,and the other two cause paralysis and cardiac arrest.
Convicted murderers in Kentucky asserted that the injections are “cruel and unusual punishment” because of the risk of prolonged pain during botched executions.
Justices Ruth Bader Ginsburg and David H. Souter dissented.
Lethal injection will be Kennedy's fate if the court finds against him.
Attorney Jeffrey L. Fisher argued Kennedy's case,saying the Louisiana law allowing death for child rape convicts stands against a national consensus trending away from the death penalty.
Louisiana is the only state where first-time child rapists can receive a death sentence. Four other states – Montana,South Carolina,Texas and Oklahoma – allow execution for child rapists,but only after multiple convictions.
Federal law also allows executions for some crimes that do not result in murder,including treason and espionage.
Two men are sentenced to die for raping children,out of the 3,350 on death row nationwide. Kennedy and Richard Davis,convicted for raping a 5-year-old,were sentenced under the Louisiana law.
Fisher argued that Louisiana's law gives juries inappropriate leeway to decide who among many convicted rapists gets the death penalty.
“We're talking about – under Louisiana's definition of child rape – about five times as many individuals per year as are convicted of deliberate murder,” Fisher said. “This is an enormous class.”
In 1976,the Supreme Court ruled in Coker v. Georgia to prohibit death sentences in rapes with adult victims. That case centered on the rape of a 16-year-old who was considered to be an adult,and the court decided execution was a “grossly disproportionate” punishment.
Ginsburg said there was a difference in the way rape was viewed before Coker,when Georgia passed the law mandating execution for adult rape. She said it came from a tradition that viewed rape victims “as good as dead.”
“The notion was that making rape equivalent to murder was no kindness to women,because it said once you've been raped,you're spoiled,” Ginsburg said.
Roberts and Justices Antonin Scalia and Samuel A. Alito Jr. questioned the anti-death penalty trend among states. They worried that a ruling in Kennedy's favor would dissuade states from adopting death penalty laws.
“If you knock them down one by one,it is kind of hard to get a trend going,” Roberts said.
Louisiana Assistant District Attorney Juliet L. Clark argued that the national trend has been toward harsher penalties for crimes against children,citing stricter child pornography laws following the Coker case.
“In Osborne v. Ohio,the court said,after Coker,you can't even possess child pornography in the privacy of your own home,” she said.
Justice Stephen G. Breyer asked questions from a different perspective.
“I'm not a moralist. I'm a judge,” Breyer said. “As a judge,I look at the law. It seems for 43 years,no one has been executed but for murder.”
He said the Louisiana code has a broad definition of rape,which could include types of child abuse. He said the class of criminals eligible for execution would need to be narrowed.
A friend of the court brief filed by a coalition of social work organizations used different reasons to oppose Louisiana's law. It said the death penalty for child rapists would provide an incentive for rapists to murder their victims because the punishment would be the same.
The brief also said the death penalty would cause under-reporting of child rapes because most child rapes are committed by family members.
The court is expected to rule on the case by summer.