Oral argument in Kennedy v. Louisiana is scheduled for Wednesday morning. In today's Washington Post, Robert Barnes reports, "Child Rape Tests Limit of Death Penalty."
Ever since the Supreme Court reinstated the death penalty more than 30 years ago, justices have been finding ways to limit it.
In the intervening years, they have employed their interpretations of society's "evolving standards of decency" to remove juvenile and mentally retarded killers from death row.
Before that, they excluded kidnappers who did not kill and even some accomplices to murder. In 1977 the court also concluded that a state could not execute a man who raped an adult woman.
But on Wednesday the court will consider whether a person who rapes a child is different. Louisiana prosecutors will argue that the same societal mores that have persuaded justices to spare certain categories of criminals lead in the opposite direction when it comes to child rapists, demanding an expansion of capital punishment, not a retrenchment.
Proponents say society demands retribution for those who harm its most vulnerable members. But some child advocacy experts say the unintended consequences of the death penalty might be a decline in the reporting of sexual assaults by family members, or even an incentive for the rapist to kill the victim.
The argument comes as the court has imposed a de facto moratorium on capital punishment while justices decide in a separate case whether the current methods of lethal injection are constitutional.
Even as the number of death sentences imposed in the United States has fallen -- there were the fewest last year since capital punishment was reinstated in 1976 -- Louisiana and a handful of other states have changed their laws to allow executions for those who rape children. They are supported by additional states that say they might want to do so in the future.
"The 'evolving standards of decency' framework is not a one-way street that may lead only towards the elimination of the death penalty," the state of Texas argues in a brief joined by eight other states. "Each state's legislature should be allowed to . . . reflect its citizens' current moral judgment regarding the just deserts for certain capital crimes."
Of the 3,300 inmates on death row across the country, only two are there for a crime other than murder. Both were convicted under Louisiana's child rape statute, passed in 1995 and still the broadest in the land.
The Post also has two sidebars, "An Evolving View of Capital Punishment, " and the graphic, "The Ultimate Punishment."
James Oliphant writes, "Is death fitting in rape of child?"
The state of Louisiana says Patrick Kennedy raped his stepdaughter. The question now is whether he should die for it.
The answer has consequences for the nation's criminal justice system. If the U.S. Supreme Court allows Louisiana to execute Kennedy, he would be the first person in America put to death in almost half a century for a crime that didn't involve taking the life of another person.
Kennedy was convicted in 2003 of assaulting his 8-year-old stepdaughter and sentenced to death. Louisiana is one of a handful of states that have made the rape of a child a capital crime. His challenge to that law comes before the high court this week.
Kennedy's lawyers argue that the law is a violation of the Constitution's 8th Amendment, which forbids cruel and unusual punishment.
While the law that will guide the court's decision is modern, the justices' inspiration reaches back beyond the Bible. The concept of "an eye for an eye" was written in Exodus and, before that, by the ancient Babylonian ruler Hammurabi. Accordingly, the justices will have to decide whether Kennedy's sentence is "proportionate" to his crime.
For four decades, absent such high crimes against the nation as treason, American law has mostly drawn a line when it comes to the death penalty: Only death warranted death. Any lesser crime, even rape, invited a lesser punishment.
Now the justices may be poised to rewrite that rule, potentially opening a series of questions about what other offenses merit the ultimate, irrevocable penalty, and perhaps inviting states to broaden the class of residents on Death Row.
"I think it would be an enormous move," said Corey Rayburn Yung, a professor at John Marshall Law School in Chicago. "It would open the door for all kinds [of new capital crimes]."
More than simply challenging the Louisiana law, Kennedy and his lawyers argue that he was wrongfully convicted, that two neighborhood boys committed the crime. However, the question of his guilt won't be addressed by the justices when they hear the case Wednesday.
"U.S. top court to hear La. child rape case," is Paul Purpura's article in the New Orleans Times-Picayune.
Legal experts say a ruling would clarify a 1977 U.S. Supreme Court decision, Coker v. Georgia, which banned the death penalty for rape of an adult.
"We're basically just saying the United States Supreme Court should follow Coker," said Billy Sothern of the Capital Appeals Project in New Orleans, which represents Kennedy.
The case is not expected to have widespread impact on whether death is the appropriate punishment for offenses in which victims do not die. Only two men are on death row for raping children, both in Louisiana. Four other states have similar laws.
"Obviously, if the Supreme Court says that the death penalty is a disproportionate punishment for the crime of a rape of a child, then that would invalidate the Louisiana statute and it would invalidate the statutes in several other states," said John Blume, a Cornell University law professor and director of the Cornell Death Penalty Project. "It would shut the door on that issue, which many people thought had been shut in Coker v. Georgia."
Until December, Kennedy, 43, was the only person out of more than 3,300 nationwide who was on death row for rape. He was convicted in 2003 of raping an 8-year-old relative in the Woodmere subdivision March 2, 1998.
Hearst News Service has, "Justices to rule if child rape can merit execution," via the Houston Chronicle. It's written by Jennifer Dlouhy.
There are more than 3,300 people on death row in the United States — but only two of them await execution for crimes that didn't involve murder.
This week, the Supreme Court will consider the case of one of them, Patrick Kennedy, a Louisiana man convicted of raping his 8-year-old step-daughter.
The case comes before the nation's highest court at a time when the justices are becoming increasingly skeptical about the death penalty and willing to curb its use.
Texas and eight other states have intervened in Kennedy's case to urge the Supreme Court to allow the death penalty for child rape. Texas Solicitor General Ted Cruz, who leads the group, will appear before the justices Wednesday to press the views for those states.
An earlier preview by Joan Biskupic is here. The Jessica's Law index is here. More on Coker v. Georgia, the 1977 U.S. Supreme Court that ruled the death penalty an unconstitutional punishment for non-homicidal rape of an adult, is here.
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