Death for child rapists argued

• By GERARD SHIELDS
• Advocate Washington bureau
• Published: Apr 17, 2008 - Page: 1A - UPDATED: 12:05 a.m.

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WASHINGTON — A Louisiana law allowing the death penalty for rapists of children was challenged Wednesday before the U.S. Supreme Court, with justices grappling over whether letting the law stand would open the door for imposing death in crimes other than murder.

Justice Anthony Scalia said the high court could not ignore the national trend of states imposing death for child rape. Louisiana passed its law in 1995 and has two men on death row for raping children. The Louisiana Supreme Court upheld the statute in 1996.

At least four other states — Montana, Oklahoma, South Carolina and Texas — have followed Louisiana in allowing death sentences for the crime, considered by those state legislatures more heinous than rape of adults, Scalia noted. Missouri is considering a similar law.

“The trend here is clearly in the direction of more and more states permitting the capital punishment for this crime,” Scalia said
At issue Wednesday was whether Patrick O’Neal Kennedy, of the Jefferson Parish community of Woodmere, should be put to death for the 1998 rape of his 8-year-old stepdaughter.

A Jefferson Parish jury convicted Kennedy in 2004 of the rape, which resulted in necessary surgery for the victim.

Law professor Jeffrey Fisher of the Stanford Litigation Clinic represented Kennedy and argued Wednesday that the death sentence for child rape violates the Eighth Amendment’s cruel and unusual punishment clause.

Upholding the Louisiana law, Fisher said, could result in an expansion of the types of crimes that would warrant the death penalty. He cited the possibility of death sentences for aggravated assault on a prison guard in Utah or aggravated kidnapping in South Dakota.

“It becomes extremely difficult to figure out where the line is going to be drawn for Eighth Amendment purposes,” Fisher said.

Thirty-one years ago, the high court invalidated a capital sentence for rape of an adult, having called that sentence “grossly disproportionate and excessive punishment.”

Justice Ruth Bader Ginsburg said the 1977 rape case, Coker v. Georgia, strictly dealt with adult rape. Not until Wednesday has the court had to address the specific charge of child rape, she said.

“You don’t have an opinion of five justices saying that, in any and all circumstances, rape that leaves the victim alive cannot be punished by the death penalty,” Ginsburg told Fisher.

Justice Stephen Breyer, however, warned attorneys arguing in support of the Louisiana law that sentencing to death a rapist of a child could result in more crimes outside of murder being considered for capital punishment.

“I’m not a moralist, I’m a judge,” Breyer said. “As a judge, I look at the law. It seems for 43 years no one has been executed but for murder.”