A discussion of contemporary law, policy, and practice in Florida criminal sentencing.

No Death Penalty for Child Rapists

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The United States Supreme Court today in a 5-4 opinion in the case of Kennedy v. Louisiana,(1) authored by Justice Kennedy and joined in by Justices Stevens, Souter, Ginsburg and Breyer, ruled that the Eighth Amendment’s cruel and unusual punishment clause prohibits states 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. The Court also ruled that the application of this law to the states under the Fourteenth Amendment renders the Louisiana statute under which petitioner Patrick Kennedy was sentenced to death for the brutal rape of his eight-year-old stepdaughter unconstitutional. As for the death penalty in Florida, however, it will be business as usual.

The facts of Kennedy were compelling: Patrick Kennedy brutally raped his eight-year-old stepdaughter on March 2, 1998 and coached her to lie about it to the police. That morning, the victim was transported by ambulance to Children’s Hospital where she was examined in the emergency room. The victim’s predominate injury was vaginal with profuse bleeding. Her entire perineum was torn and her rectum protruded into her vagina. A pediatric surgeon was called in to repair the damage, which was repaired successfully. However, as a result of pain, the victim had to be fed gallons of stool softener through a tube to permit her to begin defecating again. At trial, the defendant was convicted of aggravated rape and a unanimous jury recommended that Kennedy receive the death penalty, which the sentencing court imposed. He appealed his conviction and sentence and the Louisiana Supreme Court affirmed both, reasoning that the death penalty was proportionate in the circumstances because

[I]t can be said for child rapists as a class of offenders that, unlike the young or mentally retarded, they share no common characteristic tending to mitigate the moral culpability of their crimes. Contrary to the mentally retarded and juvenile offenders, execution of child rapists will serve the goals of deterrence and retribution just as well as execution of first-degree murderers would. Our state legislature, and this Court, have determined this category of aggravated rapist to be among those deserving of the death penalty, and, short of first-degree murder, we can think of no other non-homicide crime more deserving.(2)

Louisiana was one in only six states that authorized the death penalty for rape of a child; 44 states have not made child rape a capital offense, and these statistics appear to have some impact on the Court’s reasoning that there was a national social consensus against imposition of the death penalty for child rape and that the imposition of the death penalty for child rape is inconsistent with the evolving standards of decency that mark the progress of a maturing society.

The Louisiana law was based on an interpretation of the plurality opinion in Coker v. Georgia,(3)in which ruled that a sentence of death for the crime of rape of an adult woman where the victim survives is grossly disproportionate and excessive punishment forbidden by Eighth Amendment, that the opinion did not prohibit, and thereby authorized, the imposition of the death penalty for rapists of children under eleven years of age. In the Kennedy opinion, the Court ruled that this is a misinterpretation of Coker, and that Coker merely left the question open because the question of the death penalty for child rapists was not before the Court in that case.

The Kennedy opinion appears to stand for the proposition that the death penalty cannot be used to punish crimes against individual persons where the victim did not die or the defendant had no intent that the victim die. The Court was careful, however, to point out that it was not addressing “crimes defining and punishing treason, espionage, terrorism, and drug kingpin activity, which are offenses against the State.”

The dissent, authored by Justice Alito and joined in by Chief Justice Roberts, and Justices Scalia and Thomas, was vigorous, disputing the existence of any national consensus against imposition of the death penalty for rape of a child and pointing out that an interpretation that Coker dicta outlawed the death penalty for all forms of rape has stunted legislative initiatives that would make the rape of a child a capital offense. The dissent also argued that the Kennedy majority was in fact willing to use its power to block the potential emergence of a national consensus in favor of permitting the death penalty for child rape in favor of its own judgment regarding the acceptability of the death penalty.

The decision in Kennedy means that death penalty law in Florida will remain status quo: The death penalty will continue to be applicable to aggravated first-degree murder and capital drug trafficking. Although capital sexual battery of a victim under twelve years of age remains on the books as a crime punishable by death under certain aggravated circumstances, the statute(4) has long been, and remains, a dead letter: The Florida Supreme Court in Buford v. State(5) long ago ruled that a sentence of death is grossly disproportionate and excessive punishment for the crime of sexual assault, even when the victim is only seven years of age, and is therefore forbidden by the Eighth Amendment as cruel and unusual punishment, effectively banning imposition of the death penalty in Florida for any form of rape.

1. Kennedy v. Louisiana, — U.S. –, — S. Ct. –, 2008 WL 2511282 (2008).

2. State v. Kennedy, 957 So. 2d 757 (La. 2007).

3. Coker v. Georgia, 443 U.S. 584, 97 S. Ct. 2861, 53 L. Ed. 2d 982 (1977).

4. Sec. 794.011(2)(a), F.S.

5. Buford v. State, 403 So. 2d 943 (Fla. 1981).


Written by Hon. William Burgess

June 25, 2008 at 6:54 pm

One Response

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  1. .Child rapists don’t deserve the mercy of Death Row and a state execution, they deserve Life in Prison without parole and special protections. This way the other inmates will have many chances to gang-rape the scum every day, and then torture the vermin to death when they are sick of him. .At least the Supremes finally got one right with the DC Gun Ban issue. Hopefully, knowing that more homes may have guns, more raping and home-invading monkeys will cease in this behavior or be blown away as they well deserve. The world will be MUCH better with more of this scum dead..absurd thought – God of the Universe feelssorry for child rapistswhen they are murderedin cold blood by other thugs.absurd thought -God of the Universe saysdon’t KILL the raping monkeyseven if they prefer deathover life in prison.absurd thought -God of the Universe saysyou may not defend yourselfguns are for criminalsjust hope police show in time.absurd thought -God of the Universe saysprosecute citizenswhen they kill home invadersthreatening their families.absurd thought -God of the Universe thinkswomen shouldn’t carry gunstheir attackers and rapistsdon’t deserve their brains blown out.Philosophy of Liberty Cartoon.Child Rapists Deserve Violent Death in Prison.Help Halt Terrorism Today!.USpace:).


    August 17, 2008 at 8:27 am

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