Capital Punishment in Non-Murder Cases

On Tuesday, Patrick Kennedy filed an appeal with the United States Supreme Court asking them to overturn his death penalty conviction in a child rape case. Relying on the fact that the United States Supreme Court has historically allowed the death penalty only for the crime of murder, Mr. Kennedy, claiming that he "is the only person in the United States who is on death row for a non-homicide offense”, is asking that his sentence be reduced.

Under Louisiana law, the rape of any individual under the age of 13 (12 at the time of Mr. Kennedy’s conviction) is a capital offense. In challenging this conviction, Mr. Kennedy and his lawyers are claiming that such a sentence is cruel and unusual under the circumstances and that the sentence imposed by the Louisiana court “flouts the overwhelming national consensus that capital punishment is an inappropriate penalty for any kind of rape".

According to ScotusBlog, this case, if accepted, will provide the Roberts’ Court with their first opportunity to consider the application of the death penalty to crimes other than murder. Based on previous rulings in death penalty cases by the Court – barring capital punishment for juveniles and mentally retarded individuals – the Court may look at how other countries apply the death penalty in child rape cases. If they do use such a comparative law approach, Amnesty International reports that “more than half the nations that still have the death penalty do not impose it for child rape”; within the United States, it appears that Louisiana is the only state that asks for the death penalty in child rape cases, even though it is available in four others.

The matter in which the Supreme Court handles this case, or chooses not to, will be interesting to follow as a case such as this may not only have ramifications on death penalty issues for non-murder cases, but may also provide a view into the Court’s approach in handling future similar matters. A decision not to hear the case may signal that the Supreme Court is not ready to take these decisions out of the states’ hands. A resolution of this case in the Supreme Court could open (or close) doors on capital punishment for non-murder cases; additionally, a reliance on comparative international law in deciding this case may point to further application of the same in the future. The Court has already relied on international comparative law in handling two previous death penalty issues; according to ScotusBlog, it will not be surprising if the Court continues to do so in deciding this case and other capital punishment litigation.