Street Law Case Summary

Kennedy v. Louisiana
Argued: April 16, 2008
Decided: June 25, 2008
Facts
Although the Eighth Amendments ban on cruel and unusual punishment
does not mean that the death penalty is unconstitutional, the Supreme
Court has placed limits on when the death penalty can be used. Over the
past 30 years, for example, the Court has ruled that kidnappers and those
who rape adult women cannot be executed. Despite these rulings, some
states permit the death penalty for other crimes that do not involve murder,
like aircraft hijacking, treason, and drug trafficking of large quantities. In
addition, five states allow the death penalty as punishment for another nonhomicide crime the rape of a child. This case is about whether or not a
person can be executed for that crime.
In 2003, Patrick Kennedy was convicted of raping his eight-year-old
stepdaughter in an assault so brutal that the girl required surgery. Under
Louisiana law, the death penalty is available for defendants who rape a child
under twelve years of age. After the jury decided that Kennedy should be
sentenced to death, Kennedy appealed the judgment to the Louisiana
Supreme Court. Louisianas highest court ruled in favor of the state, and
Kennedy appealed his case to the U.S. Supreme Court.
Issue
Does the Eighth Amendment prohibit the death penalty for the rape of a
child?
Constitutional Amendment and Precedents
The Eighth Amendment
Excessive bail shall not be required, nor excessive fines imposed, nor
cruel and unusual punishments inflicted.
Coker v. Georgia (1977)
While serving several sentences for murder, rape, kidnapping, and
aggravated assault, Erlich Anthony Coker escaped from prison. He
broke into a couples Georgia home, raped the woman, and stole the
familys vehicle. Coker was convicted of rape, armed robbery, and
other offenses. The jury sentenced Coker to death, but he argued that
the death penalty for rape violated the Eighth Amendment.
The Supreme Court ruled in Cokers favor and struck down the death
sentence for the rape of an adult woman on Eighth Amendment
grounds. The Court held that imposing the death penalty for a rapist
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Kennedy v. Louisiana
that does not take human life was grossly excessive and
disproportionate, and therefore, cruel and unusual punishment
under the Eighth Amendment. It observed that Georgia was the only
state that allowed execution for the rape of an adult woman and
explained that [t]he murderer kills; the rapist, if no more than that,
does not. Life is over for the victim of the murder; for the rape victim,
life may not be nearly so happy as it was, but is not over and normally
is not beyond all repair.
Roper v. Simmons (2005)
In 1993, seventeen-year-old Christopher Simmons was sentenced to
death for murder. He argued that executing a minor violated the
Eighth Amendments ban on cruel and unusual punishment.
The Supreme Court agreed. It examined what it calls evolving
standards of decency to determine whether executing a minor was
cruel and unusual. One way to determine these standards, the
Court explained, is to consider what laws state legislatures (as elected
representatives of the people) have passed. Where there is a strong
trend around either permitting or prohibiting a certain capitalpunishment practice, then the Court is more likely to rule in a way
that is consistent with the trend. In Simmons case, the Court found
that there was a national consensus against executing minors, in
part, because 30 states prohibited the juvenile death penalty and only
three states had executed juveniles in the previous 10 years.
Arguments for Kennedy
According to the Courts precedent in Coker, the death penalty is an
excessive punishment for the rapist who does not take human life.
Therefore, to permit capital punishment in Kennedys case would be
inconsistent with the prior ruling in Coker.
Applying Ropers evolving standards of decency test, it is clear that
there is a national consensus against using the death penalty to
punish someone who rapes a child. In Roper, 20 states allowed
minors to be executed, but the Supreme Court still concluded that
there was a national trend against executing minors. In this case,
only five states permit the death penalty for those who rape children.
Moreover, Louisianas policy is out of sync with the rest of the nation:
of the 3,300 inmates on death row across the country, only two are
there for a crime other than murder and both were convicted under
Louisiana's child rape statute. The United States has not executed
anyone for a crime other than murder since 1964.

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Kennedy v. Louisiana
Allowing the death penalty for the rape of a child could result in two
unintended consequences: family members might be less likely to
report sexual assaults by family members, and there could be an
incentive for the rapist to kill the victim, since the punishment is the
same either way.
In these cases, child victims will be put on the stand to testify against
the defendant. Historically, children do not make good witnesses, and
their testimony may lead to wrongful convictions.
Louisianas death penalty for child rape is the broadest capital
punishment law in the nation. While other states only permit the
death penalty for child rapists with prior convictions or where other
special circumstances are present, Louisiana allows the death penalty
for any rape of a child under the age of twelve.
Arguments for Louisiana

The Coker decision prohibits capital punishment for the rape of an

adult woman. Thus, permitting capital punishment for the rape of a
child is not contrary to the Coker precedent.
The evolving standards of decency test in Roper favors Louisiana
because there is an emerging national consensus in favor of using the
death penalty in non-homicide crimes. Currently, 14 of the 38 states
with the death penalty allow its use for some non-homicidal crimes,
like treason and aircraft hijacking. If legislation currently pending in
other states is enacted, nearly half of capital punishment jurisdictions
will permit the imposition of death for non-homicide crimes.
Moreover, Louisianas use of the death penalty for child rape is
supported by four other states that also use capital punishment for
this crime.
The state has a special interest in protecting its most vulnerable
people (young children) and this justifies the death penalty for rape of
a child. Sexual abuse causes long-term harm to victims, who often
suffer physical and psychological disorders.
Each state's legislature should be allowed to reflect its citizens'
current moral judgment regarding the appropriate punishment for
capital crimes. Therefore, it is for Louisiana (and not the federal
courts) to determine whether the death penalty is a fitting punishment
for child rape.
Louisianas death penalty law for those convicted of child rape is not
overly broad, because it is limited to cases where the victims are
under twelve years of age.

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Kennedy v. Louisiana
Decision
Justice Kennedy wrote the majority opinion which Justices Stevens, Souter,
Ginsburg and Breyer joined. Justice Alito wrote the dissenting opinion, in
which Chief Justice Roberts and Justices Scalia and Thomas joined.
Majority
In a 5-4 decision, the Court held that the 8th Amendment prohibits capital
punishment for crimes against individuals which do not result in death,
including the rape of a child.
The majority examined the history of the death penalty, contemporary
norms, and current state laws to determine whether the use of the death
penalty for child rapists fits within the evolving standards of decency in
American society. The justices found that while 36 states and the federal
government currently impose capital punishment for some crimes, only six
states allow it for child rape. Louisiana is the only state to sentence a
person to death for child rape in over 40 years; currently, Kennedy and
another Louisiana man are the only two people on death row for a nonhomicidal crime. No state has executed a person for rape since 1964.
According to the Court, these figures demonstrate a national consensus
against capital punishment for child rape.
The justices also considered their own understanding and interpretation of
the purpose and meaning of the Eighth Amendment. They held that
punishments must fall within the limits of civilized standards, and that the
use of the death penalty for child rapists is not within these limits.
According to the Court, there is an important distinction between the
crimes of murder and rape because of their severity and permanence of
damage, though the justices acknowledged that both crimes are heinous.
The justices believe that imposing the death penalty for a crime that does
not result in the death of the victim is disproportionate and constitutes cruel
and unusual punishment.

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Kennedy v. Louisiana

Dissent
According to the dissent, the death penalty is not a disproportionate penalty
for child rapists. Justice Alito, writing for the dissent, argues that the
severe and long-term physical, psychological and emotional trauma
experienced by the victim, as well as the injury to society as a whole, make
capital punishment no less appropriate for child rape than for murder.
In addition, the dissenting justices disagreed with the Courts evaluation of
the national consensus. They argued that more states would have allowed
the death penalty for child rape if they had thought that it was permissible.
They believe that many state legislatures interpreted the ruling in Coker v.
Georgia, in which the Court prohibited the death penalty for the rape of an
adult, as prohibiting the death penalty for all rape, not just when the victim
is an adult. This is why only six states have laws that allow the death
penalty for child rape. Justice Alito, writing for the dissent, insisted that
these six states reflect a growing concern over child rape among state
legislatures, and represent the beginning of a trend toward instituting
capital punishment for child rape in more states.

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