High court to rule on child-rape execution

The Supreme Court said Friday it would decide whether a convicted child rapist could be put to death, thereby reconsidering a four-decade hiatus on executions for crimes other than murder.

Rape was commonly prosecuted as a capital crime in the 19th and early 20th centuries. The last execution for rape was in 1964, in Missouri. But Louisiana and several other states have adopted laws in recent years that permit the death penalty for the rape of a child younger than 12.

The justices agreed to hear an appeal from Patrick O. Kennedy, 43, of Louisiana, who was convicted of raping his 8-year-old stepdaughter.

His lawyers described him has “the only person in the United States who is on death row for a nonhomicide offense.” They argue that the death penalty for rape is unconstitutional cruel and unusual punishment, and note that the Supreme Court in a 1977 ruling described death as “an excessive penalty” for the rape of “an adult woman.”

In Kennedy’s appeal, lawyer Jeffrey L. Fisher argued that Louisiana’s decision “flouts the overwhelming national consensus” against capital punishment for rape.

Louisiana’s lawyers say that the trend of states authorizing execution for the rape of a child signals that such a punishment is neither cruel nor unusual.

This argument is a twist on the Supreme Court’s recent opinions defining cruel and unusual punishment. When the justices abolished executions for the mentally retarded or people younger than 18 at the time of their crime, the majority pointed out that states had been retreating from putting young and mentally retarded people to death.

This logic on state trends should work in reverse too, Louisiana’s lawyers say.

On the morning of March 2, 1998, Kennedy called the police to report that his stepdaughter had been raped by two teenagers in the neighborhood. She had severe injuries and heavy bleeding, and was taken away in an ambulance.

Investigators turned their attention to Kennedy when they found a trail of blood leading from the house. He had called a carpet-cleaning service to come to the house before he called the police.

Initially the stepdaughter confirmed Kennedy’s story, but she later said he was her rapist. She testified against him; a jury convicted him, and in 2003 he was sentenced to death.

Kennedy’s lawyer points out that from 1930 to 1964, about 90% of people executed for rape were, like Kennedy, black, as were all 14 Louisiana rapists executed during that period.

“This court should pause before condoning a practice so heavily tinged with the scourge of racism,” Fisher, a professor at Stanford Law School, argued in a court filing.

Fisher also said Kennedy’s IQ is low, about 70.

The last execution in the United States for a crime other than homicide was in September 1964, when Alabama electrocuted James Coburn for robbery. The death penalty itself was on the wane during that era, and in 1972 the Supreme Court struck down as unconstitutional the death penalty as it was then being carried out.

Four years later, the justices revisited the issue and upheld the death penalty as a constitutional prerogative for the states. But in 1977, the court’s decision in Coker vs. Georgia was widely seen as limiting the death penalty to crimes involving murder. The rape victim in that case was 16, but the court’s opinion referred to the rape of “an adult woman.”

In upholding Kennedy’s death penalty, the Louisiana Supreme Court interpreted that phrase as leaving open the possibility that the rape of a child would be viewed differently. Louisiana’s lawmakers in 1995 authorized the death penalty for the crime of aggravated rape when the victim was younger than 12.

Four other states -- South Carolina, Oklahoma, Montana and Texas -- permit capital punishment for a repeat child rapist, but no one has been sentenced to death under those laws.

Louisiana’s judges noted that Congress had authorized the death penalty for offenses such as treason, espionage or air piracy, which may not result in death. However, no one has been sentenced to die under those provisions.

Several groups of counselors who work with child sex-abuse victims filed a brief urging the court to outlaw death sentences in these cases. These laws will backfire and worsen victims’ situation, argued lawyer David Gossett. Indeed, they may “encourage offenders to kill the victims,” he argued, if the penalty is the same for rape and murder.

The Supreme Court is to hear the case of Kennedy vs. Louisiana in April and is expected to issue a ruling by late June.

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david.savage@latimes.com