Attorneys Ask Court to Declare Death Penalty 'Cruel and Unusual' Punishment for Child Rapist

Lawyers for a Louisiana man who received a death sentence for raping a child petitioned the U.S. Supreme Court Tuesday to have his case heard before the justices.

Patrick Kennedy is the only person on death row for a nonhomicide offense. He was accused of raping his 8-year-old stepdaughter in 1998, badly injuring her during the crime. She testified against him five years later at the trial.

Kennedy's legal team wants the court to declare Louisiana's law allowing the death penalty for child rape unconstitutional.

The petition asks the court to consider whether the Eighth Amendment's Cruel and Unusual Punishment clause permits a state to impose the death penalty for child rape -- a punishment usually reserved for those convicted of murder.

If that is the case, Kennedy's attorneys ask a second question: Does Louisiana's capital rape statute violate the Eighth Amendment because it doesn't set clear guidelines for juries as to who is eligible for the death penalty?

One of Kennedy's lawyers, Jelpi P. Picou Jr., director of the Capital Appeals Project, said that his client "has maintained his innocence since the beginning." Picou points out that there was "no physical evidence linking him [Kennedy] to the crime."

The death penalty is used almost exclusively for murderers, though there are some federal statutes that call for capital punishment even without the death of a victim.

There has not been an execution for rape in the United States since 1964, and no one has been executed for such a crime since the death penalty was reinstated in 1976.

The U.S. Supreme Court last looked at this issue in 1977, when it held that the death penalty for the rape of an adult was "grossly disproportionate" and "excessive punishment" and was unconstitutional under the Eighth Amendment.

The state law that sent Kennedy to death row was enacted in 1995, with few legislators arguing against it. A year later, the Louisiana Supreme Court, in a 5-2 decision, ruled that the law was constitutional.

In 1997, a challenge to Louisiana's child rape death penalty law made its way to the U.S. Supreme Court, but the high court chose not to hear the case.

In an unusual move at the time, three of the justices — John Paul Stevens, Ruth Bader Ginsburg and Stephen Breyer — released a statement that indicated they had reservations about the law. The justices said that the decision not to hear the case "does not in any way constitute a ruling on the merits."

Earlier this year, Texas joined six other states with statutes allowing for the death penalty for the rape of a child. The others are Florida, Louisiana, Montana, Georgia, South Carolina and Oklahoma.

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