Kennedy v. Louisiana: the United States Supreme Court Erroneously Finds a National Consensus Against the Use of the Death Penalty for the Crime of Child Rape

• Publication year: 2022

42 Creighton L. Rev. 655. KENNEDY V. LOUISIANA: THE UNITED STATES SUPREME COURT ERRONEOUSLY FINDS A NATIONAL CONSENSUS AGAINST THE USE OF THE DEATH PENALTY FOR THE CRIME OF CHILD RAPE

Creighton Law Review

Vol. 42

I. INTRODUCTION

For over thirty years, the Supreme Court of the United States has recognized that the death penalty is not an unconstitutionally excessive punishment.(fn1) In Gregg v. Georgia,(fn2) the Supreme Court held that the death penalty, as a form of punishment, may be imposed for the crime of murder.(fn3) Since then, the Supreme Court has narrowed the usage of the death penalty, preventing its use against certain classes of defendants.(fn4) The Supreme Court has also determined that the death penalty is not constitutionally permissible for the crime of rape when the victim is an adult woman.(fn5)

In Kennedy v. Louisiana,(fn6) the Supreme Court held that the State cannot impose the death penalty upon an individual for the crime of child rape because such a sentence was unconstitutional.(fn7) In Kennedy, Patrick Kennedy was found guilty of raping his eight year-old stepdaughter in 1998 and was sentenced to death under Louisiana's capital child-rape law.(fn8) After granting certiorari, the Supreme Court opined that the use of the death penalty for the crime of child rape violated the Eighth Amendment's prohibition against cruel and unusual punishment.(fn9) The Supreme Court reasoned that the evolving standards of decency of society showed a consensus against the use of a death sentence for such crimes.(fn10) The Supreme Court found this consensus despite the recent enactment of laws in six states allowing the use of the death penalty in cases involving child rape and pending legislation on the issue in five other states.(fn11)

This Note will first review the facts and holding of Kennedy.(fn12)This Note will then examine past Supreme Court decisions involving the constitutionality of the death penalty.(fn13) This Note will also look at several legislative records involving capital child rape laws.(fn14) This Note will argue that the Supreme Court erred when it failed to account for the dicta of Coker v. Georgia(fn15) and its effect on state legisla-tion.(fn16) Further, this Note will show that the Supreme Court failed to account for the differing precedential histories of Kennedy and other lines of death penalty cases.(fn17) Finally, this Note will show that the emerging national consensus at the time of the Kennedy decision favored imposing the death penalty upon individuals who were convicted of raping a child.(fn18)

II. FACTS AND HOLDING

In Kennedy v. Louisiana,(fn19) the State of Louisiana charged Patrick Kennedy with the aggravated rape of his stepdaughter, who was eight years-old at the time of the rape.(fn20) On March 2, 1998, 911 operators received a phone call from Kennedy reporting the rape of his step-daughter.(fn21) Kennedy claimed that he had heard screaming, ran outside, and then found his stepdaughter in the yard after she had been dragged, pushed down, and raped by two neighborhood boys.(fn22)The deputy who arrived shortly after the call noted that the yard was inconsistent with an actual rape scene as there was a dog sleeping nearby and only a small amount of blood in the grass.(fn23) The police found the victim in her bed, wrapped in a bloody blanket, wearing a t-shirt, and profusely bleeding.(fn24) Kennedy told the deputy that he had carried his stepdaughter inside, but the deputy noticed that Kennedy's clothes did not have any blood on them.(fn25) The victim needed emergency surgery to repair her injuries, which were the most severe injuries from a sexual assault that a pediatric forensic medicine expert had seen in his years of practice.(fn26)

Despite the victim's insistence that Kennedy was not the perpetrator, the police arrested him eight days after the rape.(fn27) The police found blood underneath the victim's mattress which convinced them that the rape did not take place outside, but rather in her bed.(fn28) Police also located a bicycle which Kennedy later identified as the one used by the teenagers to flee the scene.(fn29) However, the bike had flat tires, was covered in spider webs and rust, and was inoperable.(fn30) The police also discovered that Kennedy made three calls prior to dialing 911, including one to a carpet cleaning company requesting urgent assistance in removing blood stains.(fn31) Roughly one month after the rape the victim was removed from her mother's custody; upon her return to her mother, the victim told her mother that Kennedy was the one who had raped her.(fn32) About twenty-one months later, in December of 1999, the victim taped her accusation of Kennedy in an interview with the Child Advocacy Center.(fn33)

Kennedy went to trial in August 2003.(fn34) Louisiana charged Kennedy with aggravated rape of a child.(fn35) The prosecution sought a death sentence for the crime.(fn36) The applicable statute allowed for a death sentence if the rape victim was under the age of twelve and the district attorney wished to seek the death penalty.(fn37) The victim, who was nearly fourteen when the trial began, testified that Kennedy had told her to lie to the police.(fn38) She also told the jury that when she woke up, Kennedy was already on top of her.(fn39) At the conclusion of the trial, the jury found Kennedy guilty of aggravated rape.(fn40)

In the penalty phase of the trial, the cousin and goddaughter of Kennedy's ex-wife testified.(fn41) She told the jury that she spent the summer with Kennedy and his then-wife when she was eight or nine.(fn42) She testified that Kennedy had abused her sexually three times that summer.(fn43) Additionally, she stated that it took two years before she told anyone about the abuse.(fn44) She also told the jury that she never sought legal recourse against Kennedy.(fn45) Thereafter, the jury determined unanimously that Kennedy should receive a death sentence for the aggravated rape of his stepdaughter.(fn46)

Kennedy appealed his conviction and sentence to the Supreme Court of Louisiana in State v. Kennedy,(fn47) arguing that the statute under which he was convicted was unconstitutional because it allowed a death sentence for a non-homicide crime.(fn48) After affirming Kennedy's conviction and sentence on other grounds, the state's high court also held that the use of the death penalty as punishment for child rape is not disproportionate.(fn49) In doing so, the court followed the framework for deciding Eighth Amendment cases as set forth in Atkins v. Virginia(fn50) and Roper v. Simmons(fn51) by the United States Supreme Court.(fn52) The Supreme Court's Eighth Amendment framework, as set forth in Atkins and Roper, consisted of a two-step test.(fn53) The first step is a review of legislative actions addressing the question at hand, looking for objective evidence of a national consensus on the is-sue.(fn54) The second step involves the Supreme Court using its own independent judgment to determine whether or not a death sentence is proportionate to the crime.(fn55)

In reviewing legislative actions under the first step of the test set forth in Atkins and Roper, the Supreme Court of Louisiana looked at not just the number of states allowing the death sentence for the crime of child rape, but also the direction of change on the issue.(fn56)Since 1997, four other states had joined Louisiana in making child rape a capital crime.(fn57) In addition, the court also considered statutes that allowed the death penalty in other non-homicide crimes.(fn58) The court considered such statutes because it viewed child rape as the most heinous crime not involving a homicide.(fn59) The court ultimately found that the federal government and fourteen of the thirty-eight states with the death penalty had laws that allowed for a death sentence for some form of non-homicide crime.(fn60) The court reasoned that while this provided no indication of a consensus among the states, it nevertheless noted that the changing direction of legislation pointed towards the allowance of death sentences for non-homicide crimes.(fn61)Thus, the Supreme Court of Louisiana found the first step of the Supreme Court's test satisfied, and moved on to the second step.(fn62) While noting that it could not exercise the Supreme Court's independent judgment, the Supreme Court of Louisiana nevertheless stated that if any non-homicide crime could be a capital crime, child rape would be that crime.(fn63)

Kennedy then appealed his capital sentencing to the United States Supreme Court, which granted certiorari.(fn64) Kennedy argued that his death sentence violated the Eighth Amendment.(fn65) Additionally, numerous sexual assault crisis centers and social worker organizations filed amici curiae briefs on Kennedy's behalf, arguing that the imposition of the death penalty for a non-homicide child rape takes away the incentive to leave the child alive.(fn66) The State of Louisiana argued that a death sentence for the crime of child rape did not violate the Eighth Amendment.(fn67) The State of Louisiana argued that societal awareness of child rape has increased greatly and that the outrage of the public regarding sexual violence against young children is ex-treme.(fn68) It also argued that the objective indicia showed a trend supporting the imposition of the death penalty for the crime of child rape.(fn69)

In a five-four decision, the Supreme Court...