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Should child rapists face death penalty?

The high court will decide if execution for a Louisiana child rapist is constitutional.

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Currently only two men in the US are on death row for nonhomicide crimes – both convicted under the 1995 Louisiana child rape law. In addition to Kennedy, Richard Davis was sentenced to death in December for sexually assaulting a 5-year-old girl over a four-month period in 2004 and 2005.

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Louisiana juries have rejected death sentences for three other convicted child rapists. The three men were sentenced instead to prison terms.

Louisiana is one of six states authorizing a death sentence for child rape. The others are Georgia, Montana, Oklahoma, South Carolina, and Texas. Several other states are debating similar measures.

Each side argues that its position is supported by a national consensus. Kennedy's lawyers say that only a handful of states with the death penalty authorize it for child rape, and that most states' rejection of it demonstrates a consensus that it is excessive.

Supporters of the Louisiana law counter that recently enacted child rape laws suggest the beginning of a trend toward a national consensus that capital punishment is appropriate.

As a fallback position, Kennedy's lawyers argue that even if a majority of justices rule that states can execute child rapists, the Louisiana law at issue must be struck down because it does not sufficiently ensure that only the worst child rapists will face execution.

In a series of rulings over the past 30 years, the high court has established a system of safeguards to prevent the arbitrary imposition of a death sentence. One of those suggests that state laws like Louisiana's must differentiate between child rapes that are deserving of the death penalty and those that are not.

Under Louisiana law, the two aggravating circumstances that qualify a child rapist for a death sentence merely describe the crime. They do not permit a judge or jury to differentiate between individual child rapists, Fisher says. If the defendant engaged in aggravated rape and the victim was under age 12, the defendant qualifies for a death sentence.

"The first aggravating factor simply restates the crime of conviction, and the second simply restates one of its elements," Fisher writes. "The jury's discretion regarding whether to sentence [Kennedy] to death thus was not limited in any way."

Louisiana defends its statute by saying the legislature narrowed the law by confining it to the rape of young children. The death penalty can be applied only to defendants who prey on children under 12 and engage in aggravated rape. Other child rapists are not subject to capital punishment, they say.

A decision in the case is expected by late June.