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[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[S. Res. 4 Introduced in Senate (IS)]

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;
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;
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 ``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;
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
    Resolved, That it is the sense of the Senate that--
            (1) the depraved conduct of the worst child rapists merits 
        the death penalty;
            (2) standards of decency allow, and sometimes compel, the 
        death penalty for child rape;
            (3) the eighth amendment to the Constitution of the United 
        States allows the death penalty for the rape of a child where 
        the crime did not result, and was not intended to result, in 
        death of the victim;
            (4) the Louisiana statute making child rape punishable by 
        death is constitutional;
            (5) the Supreme Court of the United States should grant any 
        petition for rehearing of Kennedy v. Louisiana, No. 07-343 
        (2008), because the case was decided under a mistaken view of 
        Federal law;
            (6) the portions of the Kennedy v. Louisiana decision 
        regarding the national consensus or evolving standards of 
        decency with respect to the imposition of the death penalty for 
        child rape should not be viewed by Federal or State courts as 
        binding precedent, because the Supreme Court was operating 
        under a mistaken view of Federal law; and
            (7) the Supreme Court should reverse its decision in 
        Kennedy v. Louisiana, on rehearing or in a future case, because 
        the decision was supported by neither commonly held beliefs 
        about ``cruel and unusual punishment'', nor by the text, 
        structure, or history of the Constitution of the United States.
                                 <all>
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