Professor Berman has a wonderful post about the problems with the death sentence of Patrick Kennedy for child rape and the appeal of that sentence. From Sentencing Law & Policy:
Because the petition is so strong and effective, I have decided that the case ought to get "resolved" before the Supreme Court even has a chance to consider it. Specifically, I now think the Governor of Louisiana ought to — perhaps even ought to feel obligated to — commute Patrick Kennedy's death sentence.
As I have explained in this post, I believe states could reasonably garner symbolic and practical benefits from making certain repeat child rape a capital offense. Consequently, as I read the Kennedy cert petition, I am troubled greatly by arguments suggesting that it is always unconstitutional to make any extreme non-homicide offenses subject to the death penalty. And yet, because the facts surrounding the Kennedy case do not seem extremely aggravating, I am troubled greatly by the fact that Patrick Kennedy is the only person sentenced to death for a non-homicide offense.
I agree strongly that Kennedy represents an unusual test case for the death penalty for child rape in Louisiana. The facts are not particularly egregious as compared to an average child rape case which has facts that are presumably egregious. I would have thought the prosecutors there would have waited for a better defendant with which to push this issue forward.
I also agree with the second point that Berman does not expand upon substantially. It is a little odd to me that the cert petition focuses on the unconstitutionality of capital punishment for all non-homicide crimes (although Berman's update on this point shows a slight distinction that helps a bit). Under existing Eighth Amendment law, as was illustrated in Coker, the evolving standards of society as to what is "cruel and unusual" punishment are measured substantially by what legislatures are doing. The Supreme Court thus engages in legislative "bean counting" to see how things are changing. There are just a handful of states that have made certain child rapes death-eligible crimes. However, if you start counting states with non-homicide death penalty statutes, the number grows much larger. Also, the federal government substantially increased the number of non-homicide death penalty crimes under the Clinton administration (although as the update notes, many of these were for non person-to-person crimes). I think the defense strategy of making this an issue beyond child rape could backfire. If the Court continues to use a "bean counting" approach (which I think certain members of this Court may seek to abandon), then I think making the issue larger than child rape is going to ultimately hurt the defense. Instead, I think it might have been better to just focus on the uniqueness of Kennedy and how legislatures and juries across the U.S. have been loathe to apply capital punishment for child rape.
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