I've uploaded a copy here. Because it is late on Valentine's Day, I'll save some of my more significant ideas for tomorrow. For now, here are my initial thoughts. I think if the Court sticks with the evolving standards of decency approach, as it currently exists, this is a very hard case for Louisiana to win. By all of the various proxies used to measure the "evolving standards," there just isn't enough to suggest a consensus is emerging to support capital child rape statutes. I think the Petitioner's brief does a good job of making this point strongly (we will have to wait to see what Louisiana has to say). Louisiana's distinction from Coker (which may be illusory) has to rely on a trend toward capital rape statutes. However, with just 2 defendants on death row and only a handful of states having such statutes, it seems like an uphill battle for Louisiana.
A potentially bigger problem for Louisiana (and one that hasn't received as much attention) has to do with aggravating factors. There is a long line of cases that eliminate the possibility of a mandatory death penalty for a crime. Instead, a state has to narrow the class of defendants from those convicted to those executed. Normally, this narrowing occurs because the statute has some aggravating factors that, if triggered, can support a jury's recommendation for a death sentence. However, Louisiana messed up the design of its capital rape statute. Louisiana included in its list of aggravating factors that the defendant must rape a child under the age of 12. The problem is that the aggravating factor is also an element of the crime. Thus, no narrowing occurs. More troubling for the state, the only two aggravating factors found by the jury in the Kennedy case were: 1) that a rape occured; and 2) the victim was under the age of 12. Since, under Coker, rape alone can't support the death penalty, the only aggravating factor that should matter is the age of the victim. Since the age is a necessary element of the crime, there is a problem for Louisiana. The result of the statutory drafting and the jury's decision at sentencing was no narrowing of the class of defendants. I'm very interested to see if Louisiana has any reasonable answer to this troubling argument. This certainly supports the argument that Doug Berman made that Kennedy was a poor choice to test this law by Louisiana.
Overall, my biggest concern for the Petitioner is that the Court will abandon the evolving standards of decency approach. The likely alternative would be something of a more originalist nature (which Scalia has talked about extensively in prior 8th Amendment decisions). I'll post more about this concern tomorrow.
Sentencing Law & Policy's coverage of the brief is here.
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