# Kennedy v. Louisiana

Kennedy v. Louisiana, 554 U.S. 407 (2008), is a landmark decision by the Supreme Court of the United States which held that the Eighth Amendment's Cruel and Unusual Punishments Clause prohibits the imposition of the death penalty for a crime in which the victim did not die and the victim's death was not intended.

## Background

Rape was a capital crime in most jurisdictions during the 19th and early-20th century. In 1972 the Court decided in Furman v. Georgia that arbitrary and capricious sentencing outcomes in death penalty cases were unconstitutional. States revised their statutes to comply with Furman. The new statutes and constitutionality of the death penalty were upheld in Gregg v. Georgia (1976).
The categorical exclusion of some classes of defendants from death penalty eligibility in Atkins v. Virginia, Enmund v. Florida and Roper v. Simmons was because of the diminished culpability of juveniles and intellectually disabled defendants. Until Kennedy v. Louisiana, the only case to categorically exclude a crime was Coker v. Georgia (1977), when the Supreme Court held that the death penalty was unconstitutional for the crime of raping an adult. After Coker some states introduced new legislation allowing the death penalty for rape of very young children under 12, based on a theory that Coker was limited to the rape of adult women (the victim in that case was a 16 year old married woman with a newborn baby). Kennedy held that the death penalty is a disproportionate punishment not only for the rape of an adult woman, but also for the rape of a child, and for any ordinary non-homicide crime where a life was not taken. The Court noted that the "evolving standards of decency...requires that use of the death penalty be restrained".

## Case history

Patrick O'Neal Kennedy (born December 13, 1964), a man from Harvey, Louisiana in Greater New Orleans, was sentenced to death after being convicted of raping and sodomizing his eight-year-old stepdaughter. The rape, taking place in March 1998, was uncommonly brutal: it tore the victim's perineum "from her vaginal opening to her anal opening. [It] tore her vagina on the interior such that it separated partially from her cervix and allowed her rectum to protrude into her vagina. Invasive emergency surgery was required to repair these injuries." Kennedy maintained that the battery was committed by two neighborhood boys, and refused to plead guilty when a deal was offered to spare him from a death sentence. Nevertheless, he was convicted in 2003 and sentenced under a 1995 Louisiana law that allowed the death penalty for the rape of a child under the age of 12.
On appeal, Kennedy challenged the constitutionality of executing a person solely for child rape. The Louisiana Supreme Court rejected the challenge on the grounds that the death penalty was not too harsh for such a heinous offense. The Louisiana court distinguished the U.S. Supreme Court's plurality decision in Coker v. Georgia (1977), concluding that Coker's rejection of death as punishment for rape of an adult woman did not apply when the victim was a child.
Kennedy was one of two men in the country under sentence of death for a crime other than murder; the other, Richard L. Davis, had been sentenced under the same Louisiana law. Kennedy sought direct review of the Louisiana Supreme Court's decision in the Supreme Court of the United States, which agreed to hear the case in January 2008.

## Argument

Jeffrey L. Fisher, a Stanford Law School professor appealing on behalf of Kennedy, argued there was "overwhelming national consensus" against capital punishment for rape, including child rape. He argued that between 1930 and 1964 most of the people executed for rape in the United States were black. Furthermore, all fourteen people executed for rape in Louisiana during that same time period were black.
The state of Louisiana said that more States were authorizing the death sentence for child rape since Coker. In Atkins the Supreme Court had written that "it is not so much the number of these States that is significant, but the consistency of the direction of change" for a finding of national consensus against the execution of the intellectually disabled. The state of Louisiana argued that the same logic should apply to expand death penalty availability if the number of states authorizing the death penalty for that crime has been increasing over time.

## Questions of law presented

* Does the Eighth Amendment's Cruel and Unusual Punishment Clause permit a state to use the death penalty to punish the crime of raping a child?
* If so, does Louisiana's capital rape statute violate the Eighth Amendment insofar as it fails genuinely to narrow the class of such offenders eligible for the death penalty?

## Opinion of the Supreme Court
### Majority

The "evolving standards of decency" test is a two-step test based on the principle that disproportionate punishment is unconstitutional according to the cruel and unusual punishment clause. The Court says that evolving standards of decency "must embrace and express respect for the dignity of the person".
The court first considers "objective" evidence to determine if there is a "national consensus" against the punishment. This objective evidence includes, inter alia, a review of how many states allow the punishment:
   After reviewing the authorities informed by contemporary norms, including the history of the death penalty for this and other nonhomicide crimes, current state statutes and new enactments, and the number of executions since 1964, we conclude there is a national consensus against capital punishment for the crime of child rape.
Responding to Louisiana's objection that more states would have approved capital punishment for child rape if Coker had not been ambiguous, the Court concluded that Coker's holding was correctly understood by state legislatures as limited to adult women:
   The small number of States that have enacted this penalty, then, is relevant to determining whether there is a consensus against capital punishment for this crime.
Most significant for the Court is that Louisiana prosecutors had only sought the death penalty in five out of 180 prosecutions for child rape since the state made the death penalty available for the crime in 1995.
The second part of the "evolving standards of decency test" is subjective:
   "[T]he Constitution contemplates that in the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment." Coker, supra, at 597, 97 S.Ct. 2861 (plurality opinion); see also Roper, supra, at 563, 125 S.Ct. 1183; Enmund, supra, at 797, 102 S.Ct. 3368
Noting the precedents Coker v. Georgia and Enmund v. Florida the Court concluded that the death penalty is a disproportionate punishment for non-homicide crimes, including "child rape":
   The court concludes that there is a distinction between intentional first-degree murder, on the one hand, and non-homicide crimes against individuals, even including child rape, on the other. The latter crimes may be devastating in their harm, as here, but in terms of moral depravity and of the injury to the person and to the public, they cannot compare to murder in their severity and irrevocability.
The Court says that "evolving standards of decency...counsel us to be most hesitant before interpreting the Eighth Amendment to allow the extension of the death penalty". Noting the post-Furman procedures for individualized death penalty determinations in capital trials, the Court points out the difficulty in narrowing the class of death-penalty eligible rapes:
   We find it difficult to identify standards that would guide the decision-maker so the penalty is reserved for the most severe cases of child rape and yet not imposed in an arbitrary way.
Even when there is severe and permanent physical injury to the child rape victim, the Court says that allowing capital punishment for the rapist would not serve a legitimate retributive purpose because "it is not at all evident that the child rape victim's hurt is lessened" by executing the rapist.
The opinion concluded that in cases of crimes against individuals, "the death penalty should not be expanded to instances where the victim's life was not taken". The majority opinion left open the possibility of the death penalty for "drug kingpin activity", as well as treason, espionage and terrorism, these being considered crimes against "the State" rather than against "individual persons":
   Our concern here is limited to crimes against individual persons. We do not address, for example, crimes defining and punishing treason, espionage, terrorism, and drug kingpin activity, which are offenses against the State.

### Dissent

In his dissent, Justice Alito sharply criticized the majority for usurping the role of the legislature. Alito argued that Kennedy's rationale for defining national consensus was flawed, because the previous Coker decision had "stunted legislative consideration of the question whether the death penalty for the targeted offense of raping a young child is consistent with prevailing standards of decency." In this Alito followed former Chief Justice Warren Burger, who had dissented from Coker because it, in his view, prevented a full debate over the uses of the recently reinstated death penalty. In this vein, Alito also argued that "The Eighth Amendment protects the right of an accused. It does not authorize this Court to strike down federal or state criminal laws on the ground that they are not in the best interests of crime victims or the broader society."

## Reactions

The decision was handed down in the run-up to a presidential election and both the Democratic and Republican presidential candidates, Barack Obama and John McCain, criticized the majority opinion.
Barack Obama said at a news conference in Chicago:
   I have said repeatedly that I think that the death penalty should be applied in very narrow circumstances for the most egregious of crimes ... I think that the rape of a small child, six or eight years old, is a heinous crime and if a state makes a decision that under narrow, limited, well-defined circumstances the death penalty is at least potentially applicable, that that does not violate our Constitution.
John McCain responded to the ruling by calling it:
   An assault on law enforcement's efforts to punish these heinous felons for the most despicable crime. That there is a judge anywhere in America who does not believe that the rape of a child represents the most heinous of crimes, which is deserving of the most serious of punishments, is profoundly disturbing.
In January 2009, U.S. Senator for Louisiana David Vitter introduced S. Res. 4, "A resolution expressing the sense of the Senate that the Supreme Court of the United States erroneously decided Kennedy v. Louisiana, No. 07-343 (2008), and that the eighth amendment to the Constitution of the United States allows the imposition of the death penalty for the rape of a child." This resolution was never voted upon by the full Senate and died in committee when the 111th Congress adjourned.
During his 2012 campaign for a Texas Senate seat, Ted Cruz was criticized for not including the military case law in his brief to the Supreme Court. Cruz responded stating that the oversight did not affect the ruling as Louisiana raised the issue when it requested a rehearing, which was denied.
In 2023, Florida Governor Ron DeSantis supported moves to have the death penalty for defendants convicted of child rape, which could ultimately challenge the precedent of Kennedy v. Louisiana. In May 2023, DeSantis signed a bill that allows the possibility of the death penalty for the rape of a child under 12 years of age, though it will be judicially unenforceable unless Kennedy is overturned.
In 2024, Idaho and Tennessee pushed for similar laws. It would fail to pass in Idaho, but it passed in Tennessee. Alabama became the fourth to propose a Bill to legalise capital punishment for child rape, and it is currently passed to the Senate.
Former federal prosecutor Paul Butler said the Court in Kennedy had "practical concerns" about wrongful convictions based on unreliable testimony from child victims.

## Subsequent developments
### Reversed death sentence

The Louisiana Supreme Court remanded the case back to the district court for resentencing. After a brief hearing, Kennedy was sentenced to life imprisonment without the possibility of parole on January 7, 2009.

### Petition for rehearing

Three days after the case was decided, Dwight Sullivan, a colonel in the United States Marine Corps Reserve who was the Chief Defense Counsel for the Office of Military Commissions, noted in his CAAFlog on military justice that Congress had revised the Uniform Code of Military Justice in 2006 to add child rape to the list of offenses punishable in the military by death. None of the 10 briefs filed with the Court, and neither the majority nor dissent, mentioned the provision. On July 2, 2008, Linda Greenhouse of The New York Times highlighted Sullivan's post, bringing the issue to national attention.
After the error was discovered, supporters of the law—including the governors of Missouri and Louisiana, and 85 members of Congress—petitioned for rehearing. The United States Department of Justice also filed a brief supporting rehearing. It noted that it too had missed the 2006 amendment; since it has a duty to defend all federal laws, and since the decision called that law into question, it was duty-bound to favor rehearing.
The court requested briefs from both the state and the defense on the matter with the possibility of amending the ruling. On October 1, 2008, however, the Supreme Court decided 7–2 not to revisit its decision. In addition to the majority of five in the original case, Scalia and Roberts also filed a concurrence, writing that "the views of the American people on the death penalty for child rape were, to tell the truth, irrelevant to the majority's decision in this case ... and there is no reason to believe that absence of a national consensus would provoke second thoughts." Only Thomas and Alito voted for the rehearing.