Justices to Consider Death Penalty Issue

On Monday, the Supreme Court hears a case challenging the legality of lethal injection, another of the capital punishment cases before it this session.
On Monday, the Supreme Court hears a case challenging the legality of lethal injection, another of the capital punishment cases before it this session. (By Stephanie Kuykendal -- Bloomberg News)
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By Robert Barnes
Washington Post Staff Writer
Saturday, January 5, 2008

The Supreme Court said yesterday that it will decide whether the death penalty may be imposed on someone who rapes a child, reopening the issue of which crimes are punishable by death.

The court said in 1977 that execution was an "excessive penalty for the rapist who, as such, does not take human life." But the victim in the case was an adult, and while 45 states now ban the death penalty for any kind of rape, the others allow it if the victim is a child.

Louisiana is one, and Patrick Kennedy was sentenced to death for the rape of his 8-year-old stepdaughter in 1998. Montana, Oklahoma, South Carolina and Texas also make the death penalty an option, but only Louisiana has pursued an execution.

Kennedy was the only person in the nation on death row for a crime other than murder when he asked the court to take his case, but last month Louisiana obtained the death penalty against a second man convicted of child rape.

The nation's last executions for crimes that did not include murder were carried out in 1964.

The case adds to the capital punishment reviews the Supreme Court has agreed to undertake this term. It already has heard another case from Louisiana in which petitioners claim a prosecutor improperly excluded blacks from a jury and then prejudiced the outcome by making references to O.J. Simpson.

On Monday, the justices will hear an important case that challenges whether the procedures used in lethal injection, by far the most common method of execution in the nation, violate the Eighth Amendment protections against cruel and unusual punishment.

Kennedy's lawyers say their client's death would violate those protections.

"While the vast majority of the world's developed countries have moved toward narrowing the use of capital punishment over the previous decades, Louisiana has chosen to expand it significantly," one of Kennedy's lawyers, Jelpi P. Picou Jr., executive director of the Capital Appeals Project in New Orleans, said in a statement after the court's announcement.

A divided Louisiana Supreme Court upheld the state's law allowing the death penalty for someone who rapes a child under the age of 13, with the majority saying they could not think of a "non-homicide crime more deserving."

"Since children cannot protect themselves, the state is given the responsibility to protect them," the opinion said.

Kennedy was convicted after he reported to police in 1998 that his stepdaughter had been raped. The girl at first told police that she was assaulted by two boys in her garage in suburban New Orleans while sorting Girl Scout cookies.

But police arrested Kennedy when they found a trail of blood in the house. Still, 20 months passed before the girl identified her stepfather as her attacker. He was convicted in 2003.

The National Association of Criminal Defense Lawyers filed a brief urging the court to take the case because it said capital punishment was not fitting for a crime whose prosecution usually depended on the testimony of a young child.

"Such testimony is often unreliable because many children are susceptible to suggestion; they may confuse the suggestions of others with authentic memories; their stories may change dramatically depending upon when and by whom they are interviewed; and they recant their allegations -- whether those stories inculpate or exculpate the defendant -- at alarmingly high rates," the brief said.

The National Association of Social Workers also asked the court to take the case, saying such laws do not protect children. In a brief the association said the statute "will likely have exactly the wrong effect," since offenders, knowing they will face execution whether or not they kill their victim, may decide it is worth it to get rid of a witness.

The case was among six that the court added to its docket yesterday. Cases accepted by the court at this time of year generally are argued in April, which is usually the last month the court hears arguments before it adjourns, typically at the end of June.

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