Kennedy v. Louisiana

This is a death penalty case. It is a fascinating case because it represents about the third or fourth attempt before the US Supreme Court by opponents of the death penalty to whittle away at that punishment in our society. For example, the Supreme Court decided several years ago that a mentally-retarded person (IQ under 70) could not be executed; then, a few years ago, it decided that a person who committed a capital murder when he was under 18 years-of-age couldn't be subject to the death penalty. The question in this case is whether a person can be put to death for committing a crime (aggravated rape of a child) which did not result in the death of the victim. Only five states have such a provision, and Mr. Kennedy is the only person currently on death row in a state for being convicted of this crime. Thus, the Supreme Court will squarely deal with the issue of whether the punishment of death for rape of a child, which doesn't result in the child's death (and indeed, in this case, the child was physically healed within two weeks of the assault) violates the 8th Amendment prohibition against cruel and unusual punishment. Let's look at some history, in order to put this issue in perspective.

Some Relevant Death Penalty History

In 1976 the Supreme Court held in a memorandum opinion that the 8th Amendment prohibited Louisiana ("LA") from imposing the death penalty for the offense of aggravated rape (the girls were 16 and 17 in the case) because LA law made such punishment mandatory for the offense. Selman v. Louisiana, 428 US 906 (1976). The following year the Court decided Coker v. Georgia, 433 US 584 (1977), another case involving the rape of a sixteen year-old. In Coker the Court held that regardless of whether state law make capital punishment mandatory or discretionary, it constitutes cruel and unusual punishment for a state to impose the death penalty for the crime of aggravated rape not resulting in death. As a result, LA and a few other sattes with similar laws ceased seeking the death penalty in rape cases.

Why, you might ask, is this an issue then? If the Supreme Court seemingly has already passed judgment on the issue, why is the issue rearing its head again? Well, I am glad you asked that... In 1995 the LA legislature decided to pass a law bringing back the death penalty for aggravated rape cases in which the victim is less than twelve years-old. How could it be justified? Well, the LA legislators distinguished it from Coker in that in Coker the victims were 16 and 17; it said nothing about younger victims. Of course, those who opposed the law thought this was all window-dressing and hypocrisy, but we were in the "really tough against crime" phase in our history in the mid-1990s, and so the law was passed. The LA Supreme Court refused to invalidate it (State v. Wilson, 685 So2d 1063 (La. 1996)).

The next step is interesting, and I want to pause on it for a moment. The challenge to the LA statute, which the LA Supreme Court turned back in 1996, was what is called a "pre-enforcement" challenge. That is, there was no live case or controversy in view; the LA Supreme Court was just giving a "thumbs up" or "thumbs down" on the law without a specific defendant in mind. Well, the losers in 1996 decided to appeal the LA Supreme Court's decision to the US Supreme Court, but the Court denied certiorari in 1997 (Bethley v. Louisiana, 520 US 1259 (1997)). But the significant factor is that three of the Justices, all of whom are still on the Court (Stevens, Ginsburg, Breyer), said that their denial of cert. was because of lack of jurisdiction (i.e., there was no real "case or controversy," which the US Constitution requires) and that the denial of cert. "does not in any sense constitute a ruling on the merits of the case."

So, LA has its law in place, making it a capital crime to commit an aggravated rape if the victim is 12 years-of-age or younger. In this case the victim, known only by her initials (L.H.), was eight years-old at the time of her rape. The perpetrator refused an offer of life imprisonment and decided to go to trial. Petitioner's Brief for a Writ of Certiorari goes through in detail the somewhat shaky evidence leading to the conviction of Mr. Kennedy. Despite arguments by Kennedy's lawyers that imposing the death penalty would violate the 8th Amendment, the trial court sentenced Kennedy to death. He now is the only person on death row in the US for committing a crime not resulting in the death of the victim. No one has been executed for the crime of rape in the US for more than 40 years.

The Posture of the Case Today

The LA Supreme Court affirmed petitioner's conviction, and a majority of Justices adhered to their 1997 Wilson decision and upheld Mr. Kennedy's sentence. As Petitioner describes it:

"Although this Court held in Coker that the Eighth Amendment prohibited imposing the death penalty for rape, the majority distinguished Coker on the ground that the sixteen-year-old victim there was an “adult woman” and, therefore, that this Court “has not yet analyzed whether the rape of a child under twelve” is punishable by death. App. 43a & n.28, 48a. Freed from the compass of Coker, the majority turned to the two-part test that - in the words of the Louisiana Supreme Court (App. 45a) - a “bare majority” of “the prior Court” (that is, this Court before the appointments of its two “new members”) formalized in Roper v. Simmons, 543 U.S. 551 (2005). That test requires a court: (1) to consider objective criteria indicating whether imposing the death penalty is cruel and unusual, and then (2) to exercise “independent judgment” concerning “whether the death penalty is a disproportionate punishment” under the circumstances at issue."

So, the LA Supreme Court decided to affirm the conviction of Mr. Kennedy (957 So2d 757 (LA 2002)), with only the Chief Justice dissenting.

What Will the US Supreme Court Do?

The effort to bring challenges to death penalty in the last decade has, as I said above, worked "around the edges" of the penalty by looking at the most egregious examples of the penalty and hoping to get a 'wedge' in against the entire issue. Thus, by achieving victory on the issue of not executing people who were minors when they committed a capital offense, the anti-death penalty forces are hoping to create a climate that will eventually lead to abolition. It is the same strategy that people on both sides of the political spectrum use. For example, when the NAACP wanted to outlaw segregation in public schools, it first challenged more egregious examples of discrimination before launching its attack on the "big question." The same is happening right now on the abortion issue. Challenges to that practice are most effective if you first whittle away at it--by taking on the "partial birth" abortion issue first.

In this regard, I think that death penalty opponents are on good grounds in bringing this case. I think they automatically have three votes for them, and I wouldn't be surprised if they could pull down two more votes among the other six. Of course, Scalia, with Thomas following him, will complain about something as he votes to uphold the LA statute, but I think we have a reversal in the offing here--even if it is by a 5-4 vote.

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