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Kennedy v. Louisiana
Seal of the United States Supreme Court.svg
Supreme Court of the United States
Argued April 16, 2008
Decided June 25, 2008
Full case name Patrick O. Kennedy v. State of Louisiana
Docket nos. 07-343
Citations 554 U.S. ___; 128 S.Ct. 2641; 2008 U.S. LEXIS 5262; 2008 WL 2511282; 08 Cal. Daily Op. Serv. 7920; 76 U.S.L.W. 4584; 2008 Daily Journal D.A.R. 9470; 21 Fla. L. Weekly Fed. S 472
Prior history Defendant convicted, sentenced, La. Dist. Ct., Aug. 26, 2003; aff'd, State v. Kennedy, 957 So.2d 757 (La. 2007); cert. granted, 552 U.S. ___, 128 S. Ct. 829 (2008)
Procedural history Writ of Certiorari to the Louisiana Supreme Court
Argument Oral argument
It is unconstitutional to impose the death penalty for the crime of raping a child, when the victim does not die and death was not intended. Louisiana Supreme Court reversed and remanded to lower court for resentencing.
Court membership
Case opinions
Majority Kennedy, joined by Stevens, Souter, Ginsburg, Breyer
Dissent Alito, joined by Roberts, Scalia, Thomas
Laws applied
U.S. Const. amend. VIII; La. Stat. Ann. §14:42

Kennedy v. Louisiana, 554 U.S. ___ (2008) was a decision by the Supreme Court of the United States that held that the Eighth Amendment's Cruel and Unusual Punishment Clause did not permit a state to punish the crime of rape of a child with the death penalty; more broadly, the power of the state to impose the death penalty against an individual for committing a crime that did not result in the death of the victim is now limited to crimes against the state (i.e., espionage, treason).



Patrick O. Kennedy, a man from suburban New Orleans, Louisiana, was sentenced to death after being convicted of raping his eight-year-old stepdaughter. The rape was uncommonly brutal: it tore the victim's perineum "from her vaginal opening [ ] to her anal opening. [It] tore her vagina on the interior such that it separated partially from her cervix and allowed her rectum to protrude into her vagina. Invasive emergency surgery was required to repair these injuries."[1]. Kennedy maintained that the assault was committed by two neighborhood boys, and refused to plead guilty when a deal was offered to spare him from a death sentence.[citation needed] Nevertheless, he was convicted and sentenced under a 1995 Louisiana law that allows the death penalty for the rape of a child under the age of 12.[2]

On appeal, Kennedy challenged the constitutionality of executing a person solely for child rape, and the Louisiana Supreme Court rejected the challenge on the grounds that the death penalty was not too harsh for such a heinous offense.[3] The court distinguished the U.S. Supreme Court's plurality decision in Coker v. Georgia (1977), concluding that Coker's rejection of death as punishment for rape of an adult woman did not apply when the victim was a child. Rather, the Louisiana Supreme Court applied a balancing test set out by the U.S. Supreme Court in more recent death penalty cases, Atkins v. Virginia and Roper v. Simmons, first examining whether there is a national consensus on the punishment and then considering whether the court would find the punishment excessive. The Louisiana Supreme Court concluded that the adoption of similar laws in five other states, coupled with the unique vulnerability of children, satisfied Atkins and Roper.[4]

Kennedy was one of two men in the country under sentence of death for a crime other than murder; the other, Richard L. Davis, had been sentenced under the same Louisiana law.[5] Kennedy sought direct review of the Louisiana Supreme Court's decision in the Supreme Court of the United States,[6] which agreed to hear the case in January 2008.[7]

U.S. Supreme Court

In seeking certiorari to the U.S. Supreme Court, Jeffrey L. Fisher, a Stanford Law School professor appealing on behalf of Mr. Kennedy, argued that five states do not constitute a "national consensus" for the purposes of Eighth Amendment analysis, that Coker v. Georgia should apply to all rapes regardless of the age of the victim, and that the law was unfair in its application, singling out black child rapists for death at a significantly higher rate than whites. Certiorari to the defendant was granted on January 4, 2008.[8]

The case pitted the Eighth Amendment definition of "cruel and unusual punishment" over states' rights as defined in the Tenth Amendment, with the issue being whether states may constitutionally impose the death penalty for any crime other than murder as a principle of a state's right to impose punishment as it saw fit, under the Tenth Amendment, and, in particular, whether a death sentence is a disproportionate penalty, under the Eighth Amendment, for raping a child. No person has been executed in the United States for rape since 1964.[9]

Louisiana Assistant District Attorney Juliet L. Clark argued for the State of Louisiana and Texas Solicitor General R. Ted Cruz argued for the State of Texas and other amicus curiae states.[8]

Questions presented

  1. Does the Eighth Amendment's Cruel and Unusual Punishment Clause permit a State to use the death penalty to punish the crime of rape of a child?
  2. If so, does Louisiana's capital rape statute violate the Eighth Amendment insofar as it fails genuinely to narrow the class of such offenders eligible for the death penalty?[10]

Opinion of the Supreme Court


On June 25, 2008, the Supreme Court, splitting 5-4, held that "[t]he 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." In its majority opinion authored by Justice Kennedy, the Court explained that the application of the death penalty had to rest on national consensus, and that as only six States permitted the death penalty for child rape, no such consensus existed. In formulating the idea of "national consensus" the Court relied on the previous cases Roper v. Simmons (2005), which outlawed the execution of minors, and Coker v. Georgia (1977), which outlawed the application of the death penalty for the crime of rape. According to the Court, "[t]he death penalty is not a proportional punishment for the rape of a child." The opinion, which was joined by the court's four more liberal judges, went on to state, "The court concludes that there is a distinction between intentional first-degree murder, on the one hand, and non-homicide crimes against individuals, even including child rape, on the other. The latter crimes may be devastating in their harm, as here, but in terms of moral depravity and of the injury to the person and to the public, they cannot compare to murder in their severity and irrevocability." The opinion concluded that in cases of crimes against individuals, "the death penalty should not be expanded to instances where the victim’s life was not taken" [11]

Curiously, the majority opinion left open the possibility of the death penalty for 'drug kingpins', as well as treason, espionage and terrorism, these being considered crimes against 'the State' rather than against 'individual persons':

"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 offenses against the State."[12]


In his dissent Justice Alito sharply criticized the majority for usurping the role of the legislature. Alito argued that Kennedy's rationale for divining national consensus was flawed, because the previous Coker decision had "stunted legislative consideration of the question whether the death penalty for the targeted offense of raping a young child is consistent with prevailing standards of decency." In this Alito followed former Chief Justice Warren Burger, who had dissented from Coker because it, in his view, prevented a full debate over the uses of the recently-reinstated death penalty. In this vein, Alito also argued that "The Eighth Amendment protects the right of an accused. It does not authorize this Court to strike down federal or state criminal laws on the ground that they are not in the best interests of crime victims or the broader society."[13]

Factual error

A central point of the court's analysis was the observation that child rape was a capital offense in only six states, and that none of the 30 other states with the death penalty, nor any federal jurisdiction, authorized the death penalty for that crime.

Three days after the case was decided, a milblogger, Dwight Sullivan, noted that Congress had revised the Uniform Code of Military Justice in 2006 to add child rape to the list of offenses punishable in the military by death.[14][15] None of the 10 briefs filed with the Court, and neither the majority nor dissent, mentioned the provision. On July 2, 2008, Linda Greenhouse of The New York Times highlighted Sullivan's post, bringing the issue to national attention.[16]

After the error was discovered, supporters of the law -- including the governors of Missouri and Louisiana, and 85 members of Congress -- petitioned for rehearing. The United States Department of Justice also filed a brief supporting rehearing. It noted that it too had missed the 2006 amendment; since it has a duty to defend all federal laws, and since the decision called that law into question, it was duty-bound to favor rehearing.[17]

The court requested briefs from both the state and the defense on the matter with the possibility of amending the ruling. On October 1, 2008, however, the Supreme Court declined to revisit its decision that imposing the death penalty for child rape is unconstitutional. Concurring in the denial of rehearing, Justice Scalia explained his views against rehearing by denying the relevance of the factual error, writing that "the views of the American people on the death penalty for child rape were, to tell the truth, irrelevant to the majority’s decision in this case.[18]


The decision was handed down in the run up to a presidential election and both the Democratic and Republican presidential candidates, Barack Obama and John McCain criticized the majority opinion.

Barack Obama said at a news conference in Chicago:

I have said repeatedly that I think that the death penalty should be applied in very narrow circumstances for the most egregious of crimes...I think that the rape of a small child, six or eight years old, is a heinous crime and if a state makes a decision that under narrow, limited, well-defined circumstances the death penalty is at least potentially applicable, that that does not violate our Constitution.

Obama also argued that the high court had gone too far in restricting the powers of the states. If the court had “said we want to constrain the abilities of states to do this to make sure that it’s done in a careful and appropriate way, that would have been one thing. But it basically had a blanket prohibition and I disagree with that decision.”[19]

John McCain responded to the ruling by calling it:

an assault on law enforcement’s efforts to punish these heinous felons for the most despicable crime. That there is a judge anywhere in America who does not believe that the rape of a child represents the most heinous of crimes, which is deserving of the most serious of punishments, is profoundly disturbing.[20]

The Boston Legal episode The Court Supreme was based on this decision. Alan Shore and Denny Crane appear before the Supreme Court to argue for a man with a similar set of circumstances as Mr. Kennedy. The decision was mentioned in a later episode after the real decision was rendered.

In January 2009, U.S. Senator for Louisiana David Vitter introduced S. Res. 4, "A resolution expressing the sense of the Senate that the Supreme Court of the United States erroneously decided Kennedy v. Louisiana, No. 07-343 (2008), and that the eighth amendment to the Constitution of the United States allows the imposition of the death penalty for the rape of a child."[21]

See also


  1. ^ Statement of Counselor Juliet Clark at Oral Argument, see
  2. ^ Louisiana Revised Statutes §§ 14:42(A)(4), (D)(2)(a).
  3. ^ See Louisiana v. Kennedy, 957 So.2d 757 (La. 2007)
  4. ^ Id.; see also Susan Finch (2007). "Death penalty in rape case upheld". New Orleans Times-Picayune. Retrieved July 18 2008. 
  5. ^ Loresha Wilson (2007). "Death for rapist: Jury says man should die for assaulting 5-year-old". Shreveport Times, Shreveport, LA. Retrieved January 4 2008. 
  6. ^ See 28 U.S.C. § 1257(a) ("Final judgments or decrees rendered by the highest court of a State in which a decision could be had, may be reviewed by the Supreme Court by writ of certiorari where the validity of ... a statute of any State is drawn in question on the ground of its being repugnant to the Constitution, treaties, or laws of the United States....")
  7. ^ David G. Savage (2008). "Justices to rule on child rapist's death sentence". Los Angeles Times.,1,2048054.story. Retrieved February 20 2008. 
  8. ^ a b U.S Supreme Court Docket 07-343 - Retrieved April 27, 2008
  9. ^ Associated Press: Deaths Penalty for Child Rape Is Fought - ("[I]n 1964... a man in Missouri went to the gas chamber in what was the last time someone in this country was put to death for rape.") - Retrieved April 27, 2008
  10. ^ U.S Supreme Court Docket 07-343 - Questions Presented - Retrieved April 27, 2008
  11. ^ Kennedy v. Louisiana, slip op., at 35.
  12. ^ Supreme Court of the United States, Kennedy v. Louisiana, p26-27
  13. ^ Kennedy v. Louisiana, Alito, J., dissenting, slip op., at 15.
  14. ^ Sullivan, Dwight (2008-06-28). "The Supremes dis the military justice system". Retrieved 2009-04-07. 
  15. ^ Adler, Jonathan (2008-07-02). "Blogger Finds Factual Error in Kennedy's Kennedy Opinion". Retrieved 2009-04-07. 
  16. ^ Linda Greenhouse (2008-07-02). "In Court Ruling on Executions, a Factual Flaw". The New York Times. Retrieved 2008-07-02. 
  17. ^ David Stout (2008-07-11). "Justices Are Asked to Reconsider". The New York Times. Retrieved 2008-07-11. 
  18. ^ Scalia, Antonin (2008-10-01). "Statement of JUSTICE SCALIA, with whom THE CHIEF JUSTICE joins, respecting the denial of rehearing". Supreme Court of the United States. Retrieved 2009-04-07. 
  19. ^
  20. ^
  21. ^ S.Res. 4

22. "Kennedy Cares", National Review Online, 27 June 2008 -

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