In Kennedy v. Louisiana, Court Deaf to Child Welfare and State Sovereignty

Research Associate Reece Epstein takes a critical look at the Supreme Court’s decision in Kennedy v. Louisiana:

On May 2, 1998, Patrick Kennedy raped his eight-year-old daughter. Brutally.

The medical examiner discovered:

A laceration to the left wall of the vagina had separated her cervix from the back of her vagina, causing her rectum to protrude into the vaginal structure. The injuries required immediate surgery.

Kennedy was arrested and later found guilty by a jury of his peers of “aggravated rape of a child.” It was “unanimously determined that [he] should be sentenced to death” in accordance with Louisiana State law.

But today, in its ruling in the case of Kennedy v. Louisiana, the U.S. Supreme Court held:

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 child’s death.

In dissent, Justice Alito noted:

This is so, according to the Court, 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.

The majority decision, written by Associate Justice Anthony Kennedy, focused on a supposed “national consensus” against capital punishment as a penalty for rape. Justice Alito, however, noted the majority ignored that “in just the past few years… five States have enacted targeted capital child rape laws.” Those laws are a reaction to a stunning nationwide rise in child abuse:

From 1976 to 1986, the number of reported cases of child sexual abuse grew from 6,000 to 120,000… By 1991, the number of cases totaled 432,000. In 1995, child protection services agencies identified 126,000 children who were victims… Nearly 30 percent of those child victims were between the age of four and seven.

Most important, the majority argued that the death penalty is not appropriate in the case of child rape:

in determining whether the death penalty is excessive, there is a distinction between intentional first-degree murder on the one hand and nonhomicide crimes against individual persons, even including child rape, on the other.

As an aside, Justice Kennedy also noted:

Our concern here is limited to crimes against individual persons. We do not address, for example, crimes defining and punishing treason, espionage, terrorism, and drug kingpin activity, which are offensives against the State.

When used in cases of offense against the State, the death penalty serves to reinforce that the apparatus of government is more than a mere collection of laws and politicians. Rather, it is the vanguard of our freedom and rights, and the hand of justice.

But if we hold the State sacrosanct and crimes against it as particularly heinous, then we ought to afford the same esteem to its citizens and to children especially. Accordingly, Louisiana’s law mandating the death penalty as a punishment for child rape was just. It reinforced the notion of right and wrong, and recognized the dignity of both criminal and victim; the former by holding him ultimately responsible for his actions, and the latter by the same justice.

In Kennedy v. Louisiana, a majority of the Court showed itself to be deaf to America’s alarm at a sharp rise in child abuse, and disrespected the sovereignty of the States by deciding to suspend their power to determine how injustice ought to be remedied.

To contact author Reece Epstein directly, write him at [email protected]

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