- The Washington Times - Sunday, April 13, 2008

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More than 3,300 people sit on U.S. death rows — but only two, both in Louisiana, await execution for crimes that didn’t involve murder.

This week, the Supreme Court will consider the case of one of them, Patrick Kennedy, a Louisiana man convicted of raping his 8-year-old stepdaughter. The case reaches the nation’s highest court while the justices are becoming increasingly skeptical about the death penalty and willing to curb its use.

Texas and eight other states have intervened in Kennedy’s case to urge the Supreme Court to allow the death penalty for child rape. Texas Solicitor General Ted Cruz, who leads the group, will appear before the justices Wednesday to press the views for those states.

In court papers, Mr. Cruz argues that capital punishment is warranted in these cases because child rape “is an irreparable crime” that permanently damages “the heart, mind and soul of a young child.”

The Supreme Court has ruled already that the death penalty is unconstitutional for rape crimes involving a 16-year-old. However, the panel never has ruled on whether it is an appropriate penalty for raping younger children.

Kennedy, 44, was convicted in 2003 of raping his stepdaughter five years earlier. He had called 911 to report the 1998 assault and has claimed that two neighborhood youths were responsible. After his conviction, a jury unanimously sentenced Kennedy to death. In May 2007, the Louisiana Supreme Court affirmed the death sentence, saying it did not constitute “cruel and unusual” punishment.

In the oral arguments Wednesday, a major issue will be whether there is a national consensus on executing convicted child rapists, because in two recent rulings, the Supreme Court has cited public sentiment in deciding to bar capital punishment for mentally retarded convicts and for people who committed crimes as juveniles.

In the 2002 ruling in the mentally retarded convict case, the court concluded that its survey of the laws of the land showed that a “national consensus [had] developed against executing retarded convicts.” In 2005, the Supreme Court cited five states’ abolishing the death penalty for juveniles and “evolving standards of decency” to declare such sentences unconstitutional.

The attorneys for Texas and Louisiana argue in court briefs that if the high court is going to track trends, then the justices should take note that a number of states have expanded the list of crimes that can be punished by death.

Since 1996, five states — Louisiana, Montana, Oklahoma, South Carolina and Texas — have authorized the death penalty for crimes involving child rape, though all but Louisiana limit capital punishment to repeat offenders.

Kennedy’s lead lawyer, Jeffrey Fisher, argued in court papers that the public “overwhelmingly … views capital punishment as excessive punishment for child rape” and argued there is a “national consensus against such punishment” for crimes not involving murder.

The proof, he said, is the reluctance of prosecutors to seek the death penalty for those crimes not involving murder.

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