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Supreme Court sharply limits use of death penalty

In a 5-to-4 ruling, the justices decide child rape isn't a capital offense.

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The decision stems from the case of Patrick Kennedy, who was convicted and sentenced to die for raping his 8-year-old stepdaughter in March 1998.

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Mr. Kennedy told police that she had been selling Girl Scout cookies in the garage when two boys from the neighborhood dragged her to a side yard and raped her.

Her injuries were extensive and severe. They required surgery to stop the bleeding.

By the time Kennedy stood trial, the stepdaughter was 14. She testified that Kennedy had raped her and then told her to tell police it was two teenage boys.

Kennedy was convicted. During the sentencing phase of the trial, prosecutors presented the testimony of a second girl who said Kennedy had engaged in sexual intercourse with her several years earlier when she was 8 or 9. She did not tell anyone about it at the time and no charges were ever filed.

Kennedy's conviction and death sentence were appealed. Both were upheld by the Louisiana Supreme Court.

In reversing Kennedy's death sentence, Justice Kennedy said: "The rule of evolving standards of decency with specific marks on the way to full progress and mature judgment means that resort to the penalty must be reserved for the worst of crimes."

He added, "In most cases justice is not better served by terminating the life of the perpetrator rather than confining him and preserving the possibility that he and the system will find ways to allow him to understand the enormity of his offense."

To avoid the arbitrary application of the death penalty, Kennedy said it is necessary "at this stage of evolving standards" to limit capital punishment to only those crimes that take the life of the victim.

In his dissent, Alito questioned whether there aren't crimes even worse than murder. "Is it really true that every person who is convicted of capital murder and sentenced to death is more morally depraved than every child rapist?" he asked.

Alito said it was a question for state lawmakers, not Supreme Court justices. "The Court is willing to block the potential emergence of a national consensus in favor of permitting the death penalty for child rape because, in the end, what matters is the Court's 'own judgment' regarding the 'acceptability of the death penalty,' " he wrote.

Joining Kennedy's majority opinion were Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg, and Stephen Breyer. Chief Justice John Roberts and Justices Antonin Scalia and Clarence Thomas joined Alito's dissent.

The ruling won praise from Ben Cohen of the Capital Appeals Project in Louisiana, who has worked as Kennedy's lawyer for four years. "The Court makes clear that Louisiana's experiment with the death penalty for rape ran afoul of the United States Constitution," he said.

He noted that in addition to Kennedy, a second man, Richard Davis, was also on death row in Louisiana for child rape. He said both men would automatically be resentenced to life without the possibility of parole.

Mr. Cohen added that his client continues to assert his innocence and that he intends to mount future appeals.

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