Supreme Court Bans Execution on Child Rapists


On June 25, 2008, the U.S. Supreme Court made a controversial and historic decision regarding the fate of child rapists. The case revolved around Patrick Kennedy, 43, who was on death row in Louisiana for the brutal rape of his 8-year-old stepdaughter.

Kennedy received a death sentence in 2003 and appealed on the grounds that his execution would amount to cruel and unusual punishment and therefore would be unconstitutional. In a narrow 5-4 decision, the Supreme Court justices agreed that the execution of a child rapist would violate the Eighth Amendment. Justice Anthony Kennedy, who is not related to the convicted child rapist, cited “evolving standards of decency” that forbid capital punishment for any crime against an individual other than murder.

According to a report by CNN, Justice Kennedy wrote: “We conclude that, in determining whether the death penalty is excessive, there is a distinction between intentional first-degree murder on the one hand and nonhomicide crimes against individual persons, even including child rape, on the other.” Kennedy also noted that by allowing the death penalty for child rape, the incentive for an attacker not to kill their victims would be removed.

Patrick Kennedy would have been the first convicted rapist to be executed in the United States since 1964 for an attack in which the victim survived. After Kennedy’s stepdaughter was raped, she required surgery to repair internal injuries caused by the attack and suffered severe emotional trauma.

The ruling prohibiting the execution of child rapists will affect six states that currently have laws that allow the death penalty for convicted rapists. In Louisiana, Kennedy and one other man had been sentenced to death for child rape. Their sentences will be commuted to life in prison without the possibility of parole.

In Florida, Montana, Oklahoma, South Carolina, Texas and of course Louisiana, laws have been passed to allow the death penalty for rape, but these laws have not been applied in decades. Texas enacted its law allowing the execution of child rapists a year ago, but the only defendants on death row for rape were in Louisiana. Several other states, including Missouri, Alabama and Colorado, had been considering similar laws to allow for the execution of child rapists.

In Louisiana, the state legislators passed the 1995 law allowing the execution for the sexual violation of a child under the age of 12 although U.S. Supreme Court rulings in 1976 and 1977 had banned capital punishment for rape. Lawmakers argued that the earlier Supreme Court rulings pertained only to “adult women.”

Justice Samuel Alito wrote the dissent and said that the majority ruled against the death penalty for child rapists “no matter how young the child, no matter how many times the child is raped, no matter how many children the perpetrator rapes, no matter how sadistic the crime, no matter how much physical or psychological trauma is inflicted and no matter how heinous the perpetrator’s criminal record may be.”

Kennedy continues to maintain his innocence and will pursue appeals of his conviction in state and federal court.

Among those who were shocked and outraged by the Supreme Court’s decision were Texas Lt. Governor David Dewhurst, Alabama Attorney General Troy King, Oklahoma State Senator Jay Paul Gumm and Louisiana Governor Bobby Jindal. State lawmakers vowed to continue writing laws that allow for the execution of child rapists, despite the decision of the Supreme Court.

Even Senator John McCain and Senator Barack Obama agreed on the issue. McCain called the Supreme Court’s decision an assault on law enforcement’s efforts to punish heinous felons for the most despicable crime and Obama said that states should be allowed to make the decision to execute child rapists.

South Carolina Attorney General Henry McMaster said that states could fight the Supreme Court’s ruling by waiting for a change in the makeup of the Supreme Court or by getting legislatures to redo death penalty laws. However, legal experts have differing opinions on whether or not this would be possible.