I want to highlight two extensive previews of Kennedy. First, one by Lyle Denniston at SCOTUS Blog/SCOTUSwiki. It is here, midway down the SCOTUSwiki page for Kennedy v. Louisiana.
Forty-four years have passed since any criminal in the United States was executed for a crime in which the victim was not killed. The Supreme Court, in Kennedy v. Louisiana (07-343), will consider whether to allow states to resume the practice of imposing a death sentence for a non-homicide crime – in this case, for the crime of raping a child under age 12.
Since a Supreme Court ruling in 1910 (Weems v. U.S.), it has been clear as a constitutional matter that the death penalty may be imposed only for the most serious crimes – crimes severe enough that execution would be a proportionate punishment. The Court has never spelled out, in a final way, which crimes are in that category. Rather, it has moved from crime to crime for which states have sought the ultimate punishment, and judged each in turn. Its last decision focusing on the nature of the crime came in 1977.
That year, in Coker v. Gerogia, a plurality of the Supreme Court remarked that “rape is without a doubt deserving of serious punishment; but in terms of moral depravity and of the injury to the person and the public, it does not compare with murder, which does involve the unjustified taking of human life…We have the abiding conviction that the death penalty, which is unique in its severity and irrevocability, is an excessive penalty for the rapist who, as such, does not take human life.” Since that time, the Court has not upheld capital punishment for any crime in which death does not result. At the time the Coker case was decided, it had been 13 years since anyone in the Nation was executed for a crime other than murder. (Missouri put Ronald Wolfe to death in 1964 for the crime of rape and, later that year, Alabama executed James Coburn for robbery.)
Justice John Paul Stevens is the only member of the Court at the time of the Coker decision who is serving now (he was in the majority then), and thus the Court’s changed membership might well become a factor in its decision on whether to uphold a death sentence for a non-homicide crime. That will be tested when the Court considers Kennedy v. Louisiana, a case in which the Louisiana Supreme Court upheld a death sentence for the rape of a child under age 12. In its opinion in May 2007, the state’s highest court remarked that “it seems clear that if the [Supreme] Court is going to exercise its independent judgment to validate the death penalty for any non-homicide crime, it is going to be for child rape.”
The state court also pointed out that two new Justices have joined the Court since it laid down (by a vote of 5-4 in the 2005 decision in Roper v. Simmons) a two-part test for judging whether the death penalty was unconstitutional for a given category of case. First, a court is to review whether there are objective signs of a consensus, especially in the actions of state legislatures, on whether to allow capital punishment for a specific category of crime or defendant, and, second, whether, independent of any such consensus, the death penalty for that category is deemed to be a disproportionate punishment.” (The five Justices who spelled out that test remain on the Court now.)
The new capital punishment case now before the Justices involves Patrick Kennedy, of suburban New Orleans, who was sentenced to death after being convicted of the “aggravated rape” of his eight-year-old stepdaughter in March 1998. Kennedy and another death-row inmate in Louisiana, (At the time of his crime, the Louisiana law allowed a death sentence for rape of a child under age 12; it has since been amended to apply where the child rape victim was under 13.) Those two Louisiana inmates are the only ones in the Nation facing execution for a non-homicide crime.
In upholding Kennedy’s death sentence and the state law under which it was imposed, the Louisiana Supreme Court said that the Supreme Court’s Coker v. Georgia decision invalidating capital punishment for rape only applied to crimes in which the victim was an adult. It then went on to apply the Supreme Court’s Roper test to judge the validity of the sentence. It found a trend toward allowing capital punishment for rape of a child in the fact that five states adopted such laws following Coker. Nine other states, it noted, still have on their statute books laws that allow a death sentence for a non-homicide crime. Moving on to the second part of the constitutional test, the state Supreme Court found that the severity of the crime of raping a child justified a conclusion that execution was not too severe a punishment.
Next is Dahlia Lithwick's "Trend It, Don't End It," at Slate.com. A version also appears in the current Newsweek.
Capital punishment in America has been in a slow—repeat, slow—decline for years. According to the Death Penalty Information Center, which compiles statistics on capital punishment nationally, the number of executions has dropped steadily since 1998. Even before the 2007 moratorium took effect, the execution numbers had hit a 10-year low of 53 in 2006. American confidence in the death penalty has also dipped slightly: A Gallup poll taken in 2006 showed that while two-thirds of Americans endorsed capital punishment for murderers, given the choice between the death penalty and a life sentence without parole, slightly more preferred life in prison for the first time in decades.
And:
The Supreme Court tackled the death penalty with regard to the rape of a 16-year-old in 1977, in Coker v. Georgia, and prohibited capital punishment for the rape of an "adult." The majority found that "the death penalty, which is unique in its severity, is an excessive penalty for the rapist who, as such, does not take human life." Coker has since stood for the general principle that the death penalty is unavailable for nonmurder crimes, no matter how heinous. But Louisiana contends that child rape is different from adult rape, and its Supreme Court, in upholding the death penalty for Kennedy, wrote that "if the court is going to exercise its independent judgment to validate the death penalty for any non-homicide crime, it is going to be child rape."
Kennedy's lawyers measure the national discomfort with executing child rapists by counting to two: the number of people on death row for nonhomicide offenses. They also count to zero: the number of criminals executed for a rape since 1964. For its part, the state of Louisiana argues in its brief that public sentiment is tilting its way: "[S]ocietal awareness" and "outrage" over the sexual violation of children is rising, and the enactment of "Megan's laws" reflects a punitive new approach to child rapists. Louisiana also points out that "the rape of a child under twelve is a crime like no other," and that the physical and psychological effects of child rape are devastating. It also engages in some counting, i.e., the number of state legislatures trending toward making certain nonhomicide offenses a capital crime: Thirty-eight percent of death penalty states now punish some nonhomicide crimes with the death penalty.
The last post contained several previews. 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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