554 U.S. 407, 128 S. Ct. 2641, 171 L. Ed. 2d 525 (2008)
On March 2, 1998, Patrick Kennedy called 911 at 9:18 a.m. to report that his eight-year-old stepdaughter L.H. had been raped in the side yard by two neighborhood boys who fled on a blue bicycle.1
Police arrived between 9:20 and 9:30 a.m. and found L.H. on her bed wrapped in a bloody blanket. She was bleeding profusely from severe vaginal injuries that included a laceration separating her cervix from the vagina and a torn perineum requiring emergency surgery at Children's Hospital.2
Kennedy initially told investigators that L.H. had been dragged from the garage to the yard. Both L.H. and Kennedy maintained this account in early interviews, including a three-hour videotaped session with a psychologist days after the assault.3
Physical evidence soon contradicted the yard account. The grass showed little disturbance except for coagulated blood. A bicycle found nearby had flat tires and spider webs. Blood was discovered on the underside of L.H.'s mattress inside the home.4
Kennedy had also made telephone calls before 7:37 a.m. inquiring how to remove blood from carpet. He had called a cleaning service. He did not contact 911 until roughly 9:18 a.m.56
Eight days after the crime, Kennedy was arrested.7
About a month later L.H. was removed from her mother's custody. On June 22, 1998, she first told her mother that Kennedy had raped her. In December 1999 she recorded a videotaped accusation at the Child Advocacy Center.8
The State charged Kennedy with aggravated rape of a child under twelve under La. Stat. Ann. § 14:42 and sought the death penalty.9
The trial began in August 2003 when L.H. was thirteen. She testified that Kennedy had been on top of her, had given her orange juice with chopped pills afterward, and had instructed her to blame neighborhood boys.10
The jury convicted Kennedy of aggravated rape. After hearing testimony from another child about prior sexual abuse by Kennedy, the jury unanimously sentenced him to death.11
The Louisiana Supreme Court affirmed the conviction and death sentence in 2007. The United States Supreme Court granted certiorari in 2008.12
Whether the Eighth Amendment bars Louisiana from imposing the death penalty for the rape of a child where the crime did not result, and was not intended to result, in the victim’s death?13
The Eighth Amendment prohibits cruel and unusual punishments. It draws its meaning from the evolving standards of decency that mark the progress of a maturing society.14 Courts apply a two-step inquiry. First, the inquiry examines objective indicia of national consensus through legislative enactments and state practice. Second, the inquiry exercises independent judgment to determine whether the punishment is disproportionate to the crime. The death penalty is reserved for the narrow category of the most serious crimes where the offender exhibits extreme culpability.15
Yes. Objective indicia demonstrate no national consensus supporting capital punishment for child rape. Only six jurisdictions authorize the penalty. Louisiana alone has imposed a death sentence for the offense since 1964.16
This fact is confirmed by the solitary sentencing of Kennedy following his conviction for the aggravated rape of L.H.17 The Court's independent judgment establishes that the death penalty is disproportionate.18
The crime of child rape inflicts devastating harm. L.H. required emergency surgery for separation of her cervix and a torn perineum. She also suffered long-term psychological trauma.
Yet the crime does not result in the victim's death. It therefore lacks the severity of murder under precedents distinguishing homicide from nonhomicide offenses.19 Application of the rule to the specific facts shows that Kennedy's conduct involved premeditated calls to conceal evidence and instructions to L.H. to blame neighborhood boys. The conduct did not involve intent to kill.
The death sentence is therefore excessive when measured against the requirement that capital punishment be limited to crimes taking human life.20
The Eighth Amendment bars Louisiana from imposing the death penalty for the rape of a child where the crime did not result, and was not intended to result, in the victim’s death.21
Related opinions on this issue
Joined by Chief Justice Roberts, Justices Scalia And Thomas
Justice Alito dissented on the ground that the objective indicia of consensus are unreliable. Dicta in Coker v. Georgia discouraged state legislatures from enacting capital child-rape statutes for more than three decades. This created an artificial scarcity of such laws rather than a genuine societal rejection of the penalty.22
He further argued that the independent judgment of the Court undervalues the unique and lasting harm inflicted on child victims. This harm includes lifelong psychological trauma.23 It also includes physical injury of the sort suffered by L.H.24
States should retain the democratic authority to authorize the death penalty for the most egregious instances of child rape without interference from an unwarranted extension of Eighth Amendment limits.25