Thirty years ago the US Supreme Court issued a landmark decision, declaring that sentencing someone to death for the crime of rape was cruel and unusual punishment.
The decision referred to the rape of an adult woman, but it left an issue unresolved. What if the victim is a young girl? Can the government execute a child rapist?
Thirty years later, the Supreme Court is about to answer that question. The justices on Wednesday will hear the case on behalf of a Louisiana death-row inmate convicted of raping his 8-year-old stepdaughter in 1998.
The case is being closely watched because it may offer insight into the future direction of the high court's death-penalty jurisprudence. "The trend has been toward restriction [by the Supreme Court] of the number of people who are eligible for capital punishment," says John Blume, director of the Death Penalty Project at Cornell University Law School in Ithaca, N.Y.
At the same time, the number of death sentences imposed and the number of executions are both down. "There seems to be an increased public sentiment not necessarily to get rid of the death penalty, but to restrict its use," Professor Blume says.
A high court ruling upholding the Louisiana death sentence for child rape would buck that trend.
At issue in Patrick Kennedy v. Louisiana is the constitutionality of a Louisiana law authorizing capital punishment for the rape of a child under age 12. Lawyers for the state defend the statute, saying child rapists inflict lifelong injuries on the most vulnerable members of society.
"Rape of a child under 12 is a crime like no other," writes Juliet Clark, assistant district attorney in Gretna, La., in her brief urging the court to uphold the death sentence.
Lawyers for Mr. Kennedy say the Supreme Court's 1977 decision must be applied – regardless of the age of the rape victim. "Capital punishment is categorically impermissible for person-on-person violence that does not result in death," writes Jeffrey Fisher of Stanford Law School's Supreme Court Litigation Clinic in his brief to the court.
No one has been executed in the United States solely for the crime of rape in nearly 44 years.
The case is expected to divide the high court into familiar liberal-conservative factions with Justice Anthony Kennedy potentially wielding the decisive vote. In 2002, he voted with the majority to outlaw the death penalty for convicted killers who are mentally retarded, and he wrote the 2005 opinion declaring capital punishment for juveniles unconstitutional.
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.
Louisiana juries have rejected death sentences for three other convicted child rapists. The three men were sentenced instead to prison terms.
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.