In a few short hours the Roberts Court will hear arguments in Kennedy v. Louisiana. In the 31 years since Coker v. Georgia most assumed a state could not impose the death penalty for a non-homicide offense. Louisiana legislators thought otherwise and made capital certain types of rape, specifically child rape.
43 years ago Missouri conducted the last execution for rape. Six states permit death for at least some form of rape. JTwo men on death row in Angola, Louisiana are the only men currently on death row for this offense in the country. Indeed, as Billy Sothern, a lawyer with the Capital Appeals Project in Louisiana notes: “[t]hese are the only two men on any death row in any Western democracy for this offense.”
Essentially Kennedy can win on either of his two chief arguments. The first is that death for rape, even child rape, is impermissible as, Corey Rayburn Yung notes, “capital child rape statutes are not part of an evolving standard of decency. The second argument concerns whether the class of defendants is sufficiently narrowed under the Louisiana statute. Because the aggravating factors that applied to Kennedy were also elements of the crime, there is a real question over whether any narrowing has occurred.”
The briefs are here. The transcripts will be available tomorrow here. Lyle Denniston‘s impeccable reaction to the arguments will be here. Reaction here will be late in coming as I’m at a funeral out of town Wednesday.
Other background includes: