Kennedy v. Louisiana Argued Tomorrow
March 27th marked six months in the United States without an execution. For a nation that executed nearly 100 of its citizens only 9 years ago, this is a pretty amazing feat that has gone largely unnoticed in the popular press.
The Supreme Court hears argument tomorrow in Kennedy v. Louisiana, a case testing the Constitutionality of Louisiana’s child-rape death penalty statute. In 1977’s Coker v. Georgia the Supreme Court struck down Georgia’s death penalty statute, holding that the death penalty is an unconstitutionally disproportionate punishment for “the rape of an adult woman.” Ever since then the question left open by the opinion has gone unanswered: Is the death penalty also disproportionate for the rape of a child?
Louisiana is one of six states that permits the imposition of the death penalty for child rape. The state argues that the Supreme Court should focus not on the absolute number of states punishing child rape with death, but on the trend. Even there, Louisiana is on pretty shaky ground. There is hardly a groundswell among the state legislators for expanding the death penalty and the behaviors of juries and prosecutors is even starker. As petitioner points out in the first line of his brief: “Petitioner Patrick Kennedy is the only person in the United States who is on death row for a non-homicide offense.” It has been over forty years since an American was executed for a non-homicide crime.
Whatever the Court does with Kennedy’s case, it is unlikely to tell us too much about the future of the death penalty in the United States. The lethal injection cases are likely to be more telling, and even they are unlikely to create a watershed precedent. Still, lots of us will be looking to the Supreme Court for hints. With the Court invalidating the both juvenile death penalty and the execution of the mentally retarded in recent years, three cases might be taken as a trend. If six can be a trend, why not three?