Child Rape Tests Limits Of Death Penalty

Patrick Kennedy, 43, the subject of the appeal, raped his 8-year-old stepdaughter. She needed surgery.
Patrick Kennedy, 43, the subject of the appeal, raped his 8-year-old stepdaughter. She needed surgery.
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By Robert Barnes
Washington Post Staff Writer
Monday, April 14, 2008

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.

Those facts alone are a powerful argument that executing someone for rape would violate the Eighth Amendment prohibition against "cruel and unusual punishment," argue lawyers for Louisiana death row inmate Patrick Kennedy. The 43-year-old Kennedy was convicted of raping his 8-year-old stepdaughter in 1998 in an assault so brutal that the girl required surgery.

But Jeffrey L. Fisher, a Stanford University law professor who will argue Kennedy's case, said no matter how heinous the crime, the court decided in 1977's Coker v. Georgia-- its last previous ruling on the limits of capital punishment -- that rape is not subject to the ultimate penalty.

Justice Byron R. White wrote for the court: "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."

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