The Louisiana Supreme Court issued its decision in Louisiana v. Kennedy upholding the death sentence for Patrick Kennedy who was convicted of aggravated rape of a child. Kennedy is the only person in the United States on death row for a non-homicide crime. The opinion is not surprising given that the Louisiana Supreme Court had previously held, in State v. Wilson, that the law was not inconsistent with the United States Supreme Court holding in Coker v. Georgia. Here is the court's discussion of Coker and Wilson:
In State v. Wilson, 96-1392 (La. 12/13/96), 685 So.2d 1063, cert. denied, Bethley v. Louisiana, 520 U.S. 1259, 117 S.Ct. 2425, 138 L.Ed.2d 188 (1997), in the context of pre-trial appeals by the state from the granting of motions to quash, this Court upheld the constitutional validity of the death penalty for the crime of aggravated rape when the victim is under 12 years of age. In so doing, we distinguished the rape of a child from the United States Supreme Court’s decision in Coker, supra. For while Coker clearly bars the use of the death penalty as punishment for the rape of an adult woman, it left open the question of which, if any, non-homicide crimes can be constitutionally punished by death. Because “children are a class that need special protection,” we concluded that “given the appalling nature of the crime, the severity of the harm inflicted upon the victim, and the harm imposed on society, the death penalty is not an excessive penalty for the crime of rape when the victim is a child under the age of twelve years old.” Wilson, supra at 1070. In distinguishing the Wilson case from Coker, we pointed out that the plurality in Coker “took great pains in referring only to the rape of adult women throughout their opinion,” as being disproportionate to the death penalty, referring to an “adult woman” fourteen times. Id. at 1066.
Here is part of the court's discussion of the more recent USSC opinions in Roper and Simmons:
Thus, we must undertake the first part of the Supreme Court’s Eighth Amendment test, analyzing the legislative enactments of other states that have addressed the issue. Since Wilson, four more states, Oklahoma, South Carolina, Montana, and Georgia, presently prescribe capital punishment for child rape. Two of the jurisdictions, Oklahoma and South Carolina, recently adopted their laws in 2006. Montana enacted a child rape capital punishment statute in 1997. These state statutes are more narrowly drawn than Louisiana, as all three require proof that the defendant previously had been convicted of sexual assault of a child before he becomes death eligible. See 10 Okl. St. Ann. § 7115(I)(2006 Supp); Mont. Code Ann. § 45-5-303; S.C. Code Ann. § 16-3-655(C)(I)(2006 Supp). Georgia has persistently reenacted its capital rape provisions, Ga. Code Ann. § 16-6-1(a)(1), although some 40 years have passed since the decision in Coker. The courts of that state readily acknowledge that while the offense remains classified as a capital crime for procedural purposes, the death penalty is not available when the victim is an adult woman. Merrow v. State, 268 Ga. App. 47, 601 S.E.2d 428 (2004).32 However, in 1999, the Georgia legislature added subsection (1)(a)(2), which proscribes the carnal knowledge of a female less than 10 years old as a capital offense. See State v. Lyons, 256 Ga. App. 377, 568 S.E.2d 533, 535 (Ga. Ct. App. 2002). This statutory provision thus places Georgia in the ranks of those jurisdictions which provide capital punishment for the rape of a child which does not necessarily result in the death of the victim. Florida has retained capital child rape as a matter of statutory law but has not enforced it since 1981 following the decision in State v. Buford, 403 So.2d 493 (Fla. 1981) which struck down the law in light of Coker. Thus, a stark analysis shows that of the 38 states allowing the death penalty, only 5 provide it for child rape.
There are a lot of interesting issues discussed in the very lengthy opinion which I will delve into tomorrow.
Professor Berman thinks this case is ripe for a cert grant. I agree.
And here are some of my prior posts about the Louisiana statute: