The decision in Kennedy has received a lot of attention around the blogosphere.
Professor Eugene Volokh writes:
Many commentators had interpreted the reasoning of Coker as precluding the death penalty for anything short of murder and possibly some national security offenses (treason, espionage, and the like). But Coker spoke expressly and repeatedly of rape of an adult, so the question of the death penalty for rape of a child remains open.
Yesterday's decision follows the lead of a 1996 Louisiana Supreme Court case (State v. Wilson), but Wilson decided the question in the context of a pretrial motion, and the U.S. Supreme Court understandably -- given its general preference not to review decisions before a final judgment -- refused to hear the case. The new case, State v. Kennedy, upholds a death sentence, so I suspect the Supreme Court will agree to consider the issue.
As usual at Volokh Conspiracy, the post has triggered a large discussion in the comments. Professor Ann Althouse's post also has led to a long discussion on her site.
Capital Defense Weekly observes:
The LaSCt stopped just short of double-daring the US Supreme Court to take cert. Considering the current line-up of the US Supreme Court it is unclear whether capital rape will soon join capital murder as a constitutionally permissible form of state killing (at least according to the SCOTUS) in the near future.
The Supreme Court has taken account of state legislative trends in other areas of death penalty law. For instance, it was partly on the basis of the number of states that outlawed execution of the mentally retarded and juvenile offenders that the court held it unconstitutional.
Since 1995, Justice Victory wrote, four other states have joined Louisiana in allowing capital punishment for child rapists. Three of them — Montana, Oklahoma and South Carolina — enacted somewhat narrower laws, in that they require multiple convictions. Georgia’s law allows the death penalty for those who rape children less than 10 years old.
On Friday, the Texas Legislature approved a bill allowing the death penalty for those convicted of multiple rapes of children under 14. Krista Moody, a spokeswoman for Gov. Rick Perry, said he favored the bill and was inclined to sign it.
Dane S. Ciolino, a law professor at Loyola University in New Orleans, predicted that yesterday’s decision “undoubtedly will be considered by the United States Supreme Court.”
At the University of Chicago Law School Blog, Professor Rick Garnett writes:
Put aside, for now, the Court's caselaw. And assume, for the sake of argument, that capital punishment is, as a categorical matter, neither unjustifiable nor unconstitutional. Is there something about the capital sanction that makes it, always and everywhere, an inappropriate or unjustifiable response to child-rape (but not to, say, the non-triggerman accomplice in a homicide case)? If so, what is that something? Is there anything other than (in Chief Justice Burger's words) "primitive simplicity" on the side of the argument that the death penalty is always and necessarily an excessive penalty for rape?
Coming at the question another way, is there any reason to think that capital punishment for child-rape is less likely to yield deterrence benefits than capital punishment for homicide? It could be, in fact, that the availability of the death penalty more effectively deters child rape than it does murder and so is more justifiable in the child-rape context than in the homicide context. And, what of Chief Justice Burger's contention, dissenting in Coker, that "[i]t is not . . . irrational . . . for a legislature to make the penalty more severe than the criminal act it punishes in the hope that it [will] deter wrongdoing."
My prior post on the Louisiana decision is here and includes links to a few other sites on the case.