Patrick Kennedy, a 43-year-old man from suburban New Orleans was sentenced to death after being convicted of raping his eight-year-old stepdaughter. The Louisiana Supreme Court ruled on May 22 that the Supreme Court’s 1977 decision barring capital punishment for rape (Coker v. Georgia) does not apply when the victim is a child under age 12.
Patrick Kennedy’s lawyers appealed his case to the Supreme Court on Sept. 11, 2007, raising two issues: first, whether the death penalty for rape of a child was “cruel and unusual punishment” in violation of the Eighth Amendment, and, second, whether Louisiana’s law did not narrow the class of those eligible for that penalty because it applied whenever a rape was committed, and the victim was under 12 years of age.
The case was argued before the Supreme Court of the United States on April 16, 2008 and was decided June 25, 2008. In an opinion authored by Justice Kennedy, the court held 5-4 that 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 victim's death. The Court based its decision on what it deemed a "national consensus" against capital punishment for the crime of child rape.
On Thursday, July 10, House Republican Whip Roy Blunt (Mo.), along with 84 other members of the United States House of Representatives sent a letter asking the Justices of the Supreme Court to sua sponte withdraw its June 25, 2008 opinion and reconsider the case.
In 2005, Congress enacted the death penalty for child rapists under the Uniform Code of Military Justice. The measure passed the House by a vote of 374-41 and passed the Senate 95-0. That provision – Section 552(b) of the National Defense Authorization Act for Fiscal Year 2006 (became Public Law No. 109-163 on January 6, 2006) – provides that until the President otherwise provides, the punishment for the rape of a child may not exceed “death or such other punishment as a court-martial may direct.” In September 2007, President Bush issued Executive Order 13447 that codified the provisions of Public Law 109-163, including the provision of the death penalty for child rape, into the 2008 edition of the Manual for Courts-Martial.
The Congressmen are bringing this to the attention of the Justices to show that federal law allows for the death penalty in the case of child rape and to prove that adoption of that provision by such overwhelming majorities in both chambers of Congress clearly demonstrates a "national consensus" in favor of implementation of the death penalty in the case of child rape.