III 

111TH CONGRESS 

1ST SESSION S. RES. 4 

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. 

IN THE SENATE OF THE UNITED STATES 

JANUARY 6, 2009 

Mr. VITTER submitted the following resolution; which was referred to the 

Committee on the Judiciary 

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. 

Whereas 1 out of 3 sexual assault victims is under 12 years 

of age; 

Whereas raping a child is a particularly depraved, perverted, 

and heinous act; 

Whereas child rape is among the most morally reprehensible 

crimes; 


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•SRES 4 IS 

Whereas child rape is a gross defilement of innocence that 

should be severely punished; 

Whereas a raped child suffers immeasurable physical, psychological, and emotional harm from which the child may 

never recover; 

Whereas the Federal Government and State governments 

have a right and a duty to combat, prevent, and punish 

child rape; 

Whereas the popularly elected representatives of Louisiana 

modified the rape laws of the State in 1995, making the 

aggravated rape of a child 11 years of age or younger 

punishable by death, life imprisonment without parole, 

probation, or suspension of sentence, as determined by a 

jury; 

Whereas on March 2, 1998, Patrick Kennedy, a resident of 

Louisiana, brutally raped his 8-year-old stepdaughter; 

Whereas the injuries inflicted on the child victim by her stepfather were described by an expert in pediatric forensic 

medicine as ‘‘the most severe he had seen from a sexual 

assault’’; 

Whereas the cataclysmic injuries to her 8-year-old body required emergency surgery; 

Whereas a jury of 12 Louisiana citizens convicted Patrick 

Kennedy of this depraved crime, and unanimously sentenced him to death; 

Whereas the Supreme Court of Louisiana upheld this sentence, holding that the death penalty was not an excessive punishment for Kennedy’s crime; 


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•SRES 4 IS 

Whereas the Supreme Court of Louisiana relied on precedent 

interpreting the eighth amendment to the Constitution of 

the United States; 

Whereas on June 25, 2008, the Supreme Court of the United 

States held in Kennedy v. Louisiana, No. 07–343 (2008), 

that executing Patrick Kennedy for the rape of his stepdaughter would be ‘‘cruel and unusual punishment’’; 

Whereas the Supreme Court, in the 5–4 decision, overturned 

the judgment of Louisiana’s elected officials, the citizens 

who sat on the jury, and the Louisiana Supreme Court; 

Whereas this decision marked the first time that the Supreme 

Court held that the death penalty for child rape was unconstitutional; 

Whereas, as Justice Alito observed in his dissent, the opinion 

of the majority was so broad that it precludes the Federal Government and State governments from authorizing 

the death penalty for child rape ‘‘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 prior criminal record may 

be’’; 

Whereas, in the United States, the people, not the Government, are sovereign; 

Whereas the Constitution of the United States is supreme 

and deserving of the people’s allegiance; 

Whereas the framers of the eighth amendment did not intend 

to prohibit the death penalty for child rape; 

Whereas the imposition of the death penalty for child rape 

has never been within the plain and ordinary meaning of 


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‘‘cruel and unusual punishment’’, neither now nor at the 

adoption of the eighth amendment; 

Whereas instead of construing the eighth amendment’s prohibition of ‘‘cruel and unusual punishment’’ according to 

its original meaning or its plain and ordinary meaning, 

the Court followed a two-step approach of first attempting to discern a national consensus regarding the appropriateness of the death penalty for child rape and then 

applying the Justices’ own independent judgment in light 

of their interpretation of a national consensus and evolving standards of decency; 

Whereas, to the extent that a national consensus is relevant 

to the meaning of the eighth amendment, there is national consensus in favor of the death penalty for child 

rape, as evidenced by the adoption of that penalty by the 

elected branches of the Federal Government only 2 years 

ago, and by the swift denunciations of the Kennedy v. 

Louisiana decision by the presumptive nominees for 

President of both major political parties; 

Whereas the evolving standards of decency is an arbitrary 

construct without foundation in the Constitution of the 

United States and should have no bearing on Justices 

who are bound to interpret the laws of the United States; 

Whereas the standards of decency in the United States have 

evolved toward approval of the death penalty for child 

rape, as evidenced by 6 States and the Federal Government adopting that penalty in the past 13 years; 

Whereas the Supreme Court rendered its opinion without 

knowledge of a Federal law authorizing the death penalty 

for child rapists; 


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Whereas the Federal law authorizing the death penalty for 

child rapists was passed by Congress and signed by the 

President 2 years before the Supreme Court released the 

decision; and 

Whereas the Court presumably would have deferred to the 

elected branches of government in determining a national 

consensus regarding evolving standards of decency had it 

been aware of the Federal law authorizing the death penalty for child rapists at the time that it made the decision: Now, therefore, be it 

1 Resolved, That it is the sense of the Senate that— 

2 (1) the depraved conduct of the worst child rap3 ists merits the death penalty; 

4 (2) standards of decency allow, and sometimes 

5 compel, the death penalty for child rape; 

6 (3) the eighth amendment to the Constitution 

7 of the United States allows the death penalty for the 

8 rape of a child where the crime did not result, and 

9 was not intended to result, in death of the victim; 

10 (4) the Louisiana statute making child rape 

11 punishable by death is constitutional; 

12 (5) the Supreme Court of the United States 

13 should grant any petition for rehearing of Kennedy 

14 v. Louisiana, No. 07–343 (2008), because the case 

15 was decided under a mistaken view of Federal law; 

16 (6) the portions of the Kennedy v. Louisiana 

17 decision regarding the national consensus or evolving 


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1 standards of decency with respect to the imposition 

2 of the death penalty for child rape should not be 

3 viewed by Federal or State courts as binding prece4 dent, because the Supreme Court was operating 

5 under a mistaken view of Federal law; and 

6 (7) the Supreme Court should reverse its deci7 sion in Kennedy v. Louisiana, on rehearing or in a 

8 future case, because the decision was supported by 

9 neither commonly held beliefs about ‘‘cruel and un10 usual punishment’’, nor by the text, structure, or 

11 history of the Constitution of the United States. 

Æ 


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