Can a State Impose Capital Punishment for a Non-Homicide Crime?

Back in May my buddy Illusory Tenant brought to my attention State v. Kennedy (.pdf, 128 pages), a case in which the Louisiana Supreme Court held that executing someone for the non-homicide offense of child rape is constitutionally permissible under the Eighth Amendment. At that time IT guaranteed that the U.S. Supreme Court would grant cert.

Obviously, the Court can’t grant cert unless someone asks for it. The defendant in Kennedy filed his cert petition (.pdf, 33 pages) yesterday, bringing IT’s prediction one step closer to realization.

In 1995, Louisiana made the crime of aggravated rape of a child under the age of twelve a capital offense. The defendant, Patrick Kennedy, was convicted of raping his eight-year-old stepdaughter (the jury didn’t buy his claim that a couple of neighborhood kids did it) and sentenced to death. The Louisiana Supreme Court upheld the conviction and rejected Kennedy’s assertion that the Eighth Amendment’s proscription against cruel and unusual punishment forbids executing someone for a crime that did not result in the victim’s death.

The cert petition says that Kennedy is the only person anywhere in the United States on death row for a non-homicide crime and notes — correctly, so far as I can tell — that no one has been executed for rape in this country since 1964.

The issues Kennedy’s lawyers want the Court to decide are:

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 Supreme Court case Coker v. Georgia, 433 U.S. 584 (1977) will no doubt feature prominently in the parties’ briefs. There, the defendant escaped from prison and before being recaptured committed an armed robbery and a rape. He was sentenced to death on the rape charge. SCOTUS reversed, and the case is widely cited as authority for the proposition that executing a person for a non-homicide rape is unconstitutional. I don’t think Coker is all that clear.

The source of my uncertainty is the fact that there was no majority rationale in Coker. The odd looking breakdown (4-2-1-2) went like this:

Plurality (White, joined by Stewart, Blackmun and Stevens): The opinion refers early and often to “adult women,” but broadly concludes that “a sentence of death is grossly disproportionate and excessive punishment for the crime of rape and is therefore forbidden by the Eighth Amendment as cruel and unusual punishment.”

Concurrences (Brennan and Marshall): Capital punishment always violates the Eighth Amendment.

Partial Concurrence, Partial Dissent (Powell): The plurality made the right call on these facts, but the suggestion that capital punishment is never constitutional for non-fatal rapes is bullshit.

Dissent (Burger and Rehnquist): Pretty please, with sugar on top, can we throw the switch?

How a majority of the current Supreme Court will view Coker is anyone’s guess, but the beauty — and the horror — of Supreme Court precedent is that the Court isn’t bound by it unless the Court wants to be. The current lineup carries the rather sickening potential for a mammoth step backward in death penalty jurisprudence.

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  • Zach  On September 13, 2007 at 2:45 pm

    Yeah, the current makeup of the SCOTUS doesn’t bode well for anyone who’s an opponent of capital punishment. Hell, I wouldn’t be surprised if the current SCOTUS offers to throw the switch themselves.

  • illusory tenant  On September 13, 2007 at 9:37 pm

    Good stuff, thanks … I’d forgotten about this one.


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